Holding

A public admonition (reprimand) is the appropriate sentence, and the month-long suspension is substituted with a reprimand.

Summary

The appellant, a practising advocate, certified the solvency of a surety for his client in a bailable offence, violating Rule 10 of the Bar Council of India’s professional conduct rules. The Disciplinary Tribunal of the Bar Council suspended him for one month, and his appeal to the Supreme Court was dismissed by the Tribunal. The Supreme Court examined whether a reprimand, permissible under Section 35 of the Advocates Act, 1961, could replace the suspension, considering the ends of public justice. Noting the appellant’s youth, the absence of moral turpitude, and the fact that the surety was indeed solvent, the Court held that a public admonition was a more appropriate deterrent than a month’s suspension. Consequently, the appeal was allowed in part, the suspension was set aside, and a reprimand was imposed.

Issues considered

Whether the disciplinary punishment of suspension for certifying a surety's solvency is appropriate under the Bar Council Rules.
Whether Section 35 of the Advocates Act, 1961 permits a reprimand in place of suspension when the ends of public justice are met.
Whether the circumstances of the case justify a public admonition rather than a harsher penalty.

Legislation cited

Advocates Act, 1961s. 35

Subjects

professional misconductBar Council of Indiareprimandsuspensionsurety certificationbailAdvocates Actdisciplinary proceedingslegal ethicspublic admonition

Judgment

205

' VUAYSINGH RATHORE
v.
• MURARILAL & ORS.
August 3, 1979
' [V, R. KRISHNA IYER, D. A. DESAI AND A. D. KOSHAL, J!) B
Advocates Act 1961-S. 35-Rule 10, Chapter ll, Part 6 of the Rules for
professjonal misconduct-Scope of-Reprimand whether meets ends of justice.
Rule 10, Chapter II, Part 6 of the Rules framed by the Bar Council of
India for professional mis~conduct provides that an advocate shall not stand
a surety, or certify_Jhe soundness of a surety, for his: client required for the pur- C
poses of any legal proceedings.

The appeIJant, a practising advocate, was suspended for Ohe month by the
Disciplinary Tribunal of the Bar Council of India on the ground that in viola~
tion of the rules, he had certified the solvency of a surety in a bailable offence
in which the accused was his client. The appellate body dismissed his appeal.

On the question whether a reprimand would meet the ends of justice, D
Allowing the appeal in part,
.IIELD : (I) Sectfon 35 of the Advocates Act permits reprimand provided
)
the ends of public justice are met by this leniency. Ordinarily this Court does

·-. not interfere with a punishment imposed by the Disciplinary Tribunal except
where strong circumstances involving principle are present. Censure has a
better deterrent value on the· errant brethren in the profession in some Aitua-
It
tions than suspension for a month trom professional practice.
Jn the present case the lawyer vafs young, the offence v.ras not tainted with
ttirpitude and the surety whose solvency he certified was found to be good.
These circumstances are amelioratory and hardly warrant codign punishment.
Public admonition is an appropriate sentence in the present case.
F
Public professions which enjoy a monopoly of public audience have a
statutorily enforced social accountability for purity, probity and people-conscious
service. In our country bail has become a logey and an instrument of unjust
incarceration. This harasses the poor and leads to corruption. A smart law-
yer who appears for an indigent accused may commiserate and enquire whether
the surety is solvent. If he is satisfied that the surety is sufficiently solvent, he
rilay certify the solvency of the surety. In some cases the detainee may be a G
close .relation or close friend or a poor servant of bis. In that capacity, :iot !ls
a lawyer, he may know the surety and , his solvency or may offer himself
as 3. surety. In such cases he violates the rule all the same. The degree of
culpability in such cases depends on the total circumstances and the social
milieu.

The rule under consideration is a wholesome one in the sense that lawyers B
sl:lOU:ld itot misuse their role for making extra perquisite's by standing surety
for their clients or certifying the solvency of such sureties. The Court may not
206 SUPREME COURT REPORTS [1980] l S.C.R.
'
.~.

A frown upon a lawyer \Vho helps out the person, not by false pretences, but on
the strength of factual certitude and proven inability to substantiate solvency.

The Court reprin1anded the appellant and directed that he shall not violate
the norm of professional conduct and shall uphold the purity and probity of
the profession generally.

• CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1922 of 1979.
From the Judgment and Order dated 7-5-1979 of the Disciplinary
Committee of the Bar Council of India in D.C. Appeal No. 19/78.
Appellant in Person and S. S. Khanduja for the Appellant.
The Order of the Court was delivered by
c KRISHNA IYl':R, J. The Appellant, a fledging in the legal pro-
fession, has been punished by the Tribunal of the Bar Council for
eating the forbidden fruit of dubious professional conduct by impro-
perly certifying the solvency of a surety for an accused person, his
client. Suspension from practice for one month is the punishment
awarded by the trial tribunal and in appeal. Counsel for the appellant
D
Shri Khanduja, has pleaded for an admonitory sentence by the Court
ex-misericordium. Of course, the punitive pharmacopoeia of the Advo-
cates Act, in Section 35, does permit reprimand provided the ends of
public justice are met by this lenien'cy. After all, public professions
which enjoy a monopoly of public audience have a statutorily enforced
social. accountability for purity, probity and people-conscious service.
In our Republic, Article 19(1) (g) vests a fundamental right to practise
any profession only subject to reasonable restrictions in the interests
of the general public (vide Art. 19(6). The law forbids the members
of the legal or other like professions from converting themselves into
a conspiracy against the laity and all regulations necessary for ensuring
F a people-oriented bar without exploitation potential are permissible,
nay necessary. Rule 10, chapter 2· part six of the Rules of Bar
Council of India for Professional Misconduct framed for disciplinary
purposes is stated lo have been violated by the appellant for which
dispensatory punishment has been meted out.
G The factual setting gives an insight into the degree of deviance
af the delinquent appellant. Punishment must be geared to a social
•'
goal, at once deterrent and· reformatory. In the present case, the
appellant is charged with certifying the solvency of a surety in a '
{·
bailable offence. Obviously, the accused, who was the client of the
appellant, was entitled to be enlarged on bail because the offence for
B which he was in custody was admittedly bailable. Even so, it is
_ a common phenomenon in our country that bail has too often be-
come a bogey and an instrument of unjust incarceration. There are
VIJAYSINGH v. MURARILAL (Krishrl.1 Iyer, J.) 207

A
some magistrares who are never satisfied about the solvency of sure-
ties except when the praperty of the surety is within their jurisdic-
tion and Revenue Officers have attested their worth. This harasses the
poor and leads to corruption as pointed out by this Court in M oti
Ram's case(1). It may, therefore, be quite on the cards that some
sympathetic lawyer who appears for an indigent accused may com-
miserate and enquire whether the. surety is solvent. If he is satis- •
fied, on sure basis, that the surety is sufficiently solvent, then he may
salvage the freedom of the accused by certifying the solvency of
which he has satisfied himself. It is also possible that the detainee
is· a close re!Ution or close friend or a poor servant of his. In that
capacity, not as a lawyer, he may know the surety and his solvency c
or may ofler himself as a surety. If a lawyer's father or mother is
arrested and the Court orders release on bail, it is quite conceivable
and perhaps legitimate, if the son appears for his parent and also
stands surety. He violates the rule all the same. The degree of
culpability in a lawyer violating Rule 10, chapter 2, part six depends
on the total circumstances and the social milieu. D

This Court has hel.d, taking cognizance of the harassment flowing
from sureties being insisted upon before a person is enlarged or bail-
ed out, that the Court has the jurisdiction to release on his own
bond without the necessity o fa surety. The question, therefore, is
whether the circumstances of the offence and offender are venal or E
venia1.
The Rule with which we are concerned is a wholesome one in
the sense that lawyers should not misuse their role for making extra
perquisites by standing surety for their clients or certifying the sol-
vency of such sureties. That is a bolt on the bar, an exploitative
F
stain on the profession. At the same time, the punishment is flexible
ip the sense that where the situation cries for the help of the lawyer
in favour of a client who is languishing in jail because his surety is
ooing unreasonably rejected, we may not frown upon a lawyer who
helps out the person, not by false pretences, but on the strength of
factual certitude and proven inability to substantiate solvency. Jn G
the presenf C'ase, the circumstances are amelioratary and hardly warr-
ant condign punishment.
The lawyer is young, the offence is not tainted with turpitude
and the surety ivhose solvency be certified was found to be good.
The most that may be justified is perhaps a public reprimand since
D
.censure has a better deterrent value on the errant brethren in the
---·~--
(I) Moti R'.im & Ors. v. State of M.P. [1969] l SCR 335.
208 SUPREME COURT REPORTS (J 980] l S.C.R.

A
profession in some situations than a suspension for a mouth from
professional practice which may pass unnoticed in the crowd of law-
yers and the delinquent himself may be plying his business except
for appearance in Court. In suitable cases, of course, even severity
of suspension or disbarment may be justified.
B This Court should not -interfere ordinarily with a punishment
imposed by the Disciplinary Tribunal except where strong circums-
tances involving principle are present. Ini our vast country of illi-
terate litigants and sophisticated litigation, the legal position must be
so explained as to harmonise the interests of the indigents who are
marched into Court and the professional probity of the Bar which
c is an extended instrument of justice.
We .hold that public admonition is an appropriate sentence in the
present case and proceed to administer it in open court to the appel-
lant ! We hereby reprimand him and direct that he shoall not violate
the norms of professional conduct and shall uphold the purity and
D probity of the profession generally, and, in particular, as spelt out
in the rules framed by the Bar Council of India. We condone his
deviance this time and warn him that he shall not violate again.
The appeal is, to this extent, allowed and the sentence of repri-
mand substituted for the sentence of suspension. -
E
P.B.R. Appeal allowed in part.