VIJAY SINGH Vs. MURARILAL

JUDGEMENT

(1.) -The Appellant, a fledgling in the legal profession, has been punished by the Tribunal of the Bar Council for eating the forbidden fruit of dubious professional conduct by improperly 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 Shri Khanduja, has pleaded for an admonitory sentence by the Court ex-misericordium. Of course, the punitive pharmacopoea of the Advocates Act, in Section 35, does permit reprimand provided the ends of public justice are met by this leniency. 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 practice 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 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 to have been violated by the appellant for which the dispensatory punishment has been meted out.

(2.) The factual setting gives an insight into the degree of deviance of 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 which he was in custody was admittedly bailable. Even so, it is a common phenomenon in our country that bail has too often become a bogey and an instrument of unjust incarceration. There are some magistrates who are never satisfied about the solvency of sureties except when the property of the surety is within their jurisdiction and Revenue Officers have attested their worth. This harasses the poor and leads to corruption as pointed out by this Court in Moti Ram's case (1979) 1 SCR 335. It may, therefore, be quite on the cards that some sympathetic lawyer who appears for an indigent accused may commiserate and enquire whether the surety is solvent. If he is satisfied, 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 relation or close friend or a poor servant of his. In that capacity, not as a lawyer, he may know the surety and his solvency or may offer 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.

(3.) This Court has held, taking cognizance of the harassment flowing from sureties being insisted upon before a person is enlarged or bailed out, that the Court has the jurisdiction to release on his own bond without the necessity of a surety. The question, therefore, is whether the circumstances of the offence and offender are venal or venial.