Wednesday, April 24, 2024

Crime Does Not Pay

The Allahabad High Court directed UP and the state Bar Council to ensure that a person with a criminal case does not get the licence to practice law. But can only an accused be disqualified?

Recently, the Allahabad High Court in Pawan Kumar Dubey vs State Of UP And 3 Others mandated the Uttar Pradesh government and the State Bar Council to incorporate a police report evaluation in the licensing process for aspiring lawyers. Justices Saumitra Dayal Singh and Vinod Diwakar, presiding over a division bench, emphasised that this due diligence was crucial to prevent individuals with a criminal record from obtaining a legal license from the Bar Council of Uttar Pradesh.

The Court directed the authorities, specifically respondent nos. 1 (State of UP) and 2 (State Bar Council), to promptly issue the necessary directives. These aim to procure police reports from relevant police stations concerning both existing and new applications for licensing, re­sembling the procedure followed for passport issuance.

The Court suggested the provisional issuance of a license before receiving the police report, with the diktat that if an adverse report surfaced subsequently, the provisional license may be revoked.

This directive stemmed from a petition that highlighted an instance where an individual with 14 pending criminal cases, including four convictions, managed to secure a legal license by concealing his criminal background. Acknowledging the pending nature of the petitioner’s complaint since September 2022, the Court urged the State Bar Council to expedite disciplinary proceedings within three months.

The Court said that it found it disconcerting that someone with a history of 14 criminal cases obtained a legal license, emphasising the potential harm to society and the legal profession. The Advocates Act strictly prohibits the admission of such individuals to practice law.

The Court recommended that the State Bar Council establish a systematic process for timely police verification of all new license applicants, urging applicants facing criminal charges or convictions to disclose this information at the application stage. Failure to disclose such details might lead to application rejection. Consequently, the Court instructed the Uttar Pradesh Bar Council to ensure that legal licenses are issued only after a thorough review of the accompanying police report.

In contrary to the aforesaid case, in 2018, the Gwalior bench of Madhya Pradesh High Court had imposed a fine of Rs 5,000 on the State Bar Council for denying registration to a person because a criminal case was pending against him. The amount would be given to the petitioner as cost of litigation. The Court further allowed the petitioner to approach court with civil jurisdiction for more compensation. “So far as prayer for compensation is concerned, petitioner is free to approach the court of civil jurisdiction. However, since the petitioner has been delinquently denied entry into the State Rules of Advocate for reasons which are apparently illegal and not accepted as a statutory authority of the MP Bar Council, this court imposes fine of Rs 5,000 which is directed to be paid to the petitioner within a month,” said Judge Sheel Nagu in the concluding paragraph of his judgement.

According to facts of the case, petitioner Braj Mohan Mahajan was not enrolled as an advocate by the State Bar Council because a criminal case was pending against him under Sections 452, 353, 323 and 194 of the IPC at Gwalior (trespass, preparation for hurt, assault, use of force against public servant and wrongful restraint). The petitioner had challenged the State Bar Council decision on the ground that pendency of a criminal case does not prohibit anyone from registration as an advocate. He said no judgment has been pronounced in the case till date either of acquittal or conviction. The State Bar Council, however, maintained that because of the pending case against him, the petitioner’s application for registration as a lawyer had been declined.

The Court took note that Section 24 (a) in The Advocates’ Act, 1961, provides for disqualification of a person for registration as lawyer “if he is convicted in an offence involving moral turpitude, if he is convicted in an offence under the provisions of untouchability Act, and if he is removed from office or employment under the state on the charge of moral turpitude”. The Court said the petitioner was only an accused and can’t be disqualified for registration as an advocate.

In 2015, the Madras High Court ordered the Bar Council of Tamil Nadu and Puducherry to enrol law student R Nagendran as an advocate within four weeks despite an “unlawful assembly” criminal case pending against him (and 23 others) because he had taken part in a protest against liquor while he was a student at Coimbatore.

The division bench of Justices V Ramasubramanian and K Ravichandrabaabu said that no trial had commenced against Nagendran and that there were no allegations that he had indulged in any violence or behaviour likely to damage property while protesting. The Bar Council contended that the petitioner would have to await the outcome of the criminal case against him and referred to a series of orders passed by the High Court where it was held that the criminal antecedents of the candidates seeking enrolment should be verified by the Bar Council and that the nobility and purity of the profession could not be allowed to be sullied by the entry of anti-social elements into the profession.

The bench observed: The prohibitive order issued by the judge has to be understood in the right perspective and cannot be applied blindfold to all types of cases where criminal complaints came to be registered against individuals. One of the ideals of our Constitution is to raise the level of nutrition and the standard of living of the people of the country and the improvement of public health. The protest/ demonstration organised by the group of students, including the petitioner, was actually towards fulfilment of this fundamental duty.

The mere fact that he was part of a group which just stood in front of a liquor shop and shouted slogans cannot make him guilty of an offence, as they were only exercising their fundamental right under Article 19(1)(b) and performing their fundamental duty under Article 51-A for impressing upon the State the need to follow the Directive Principle of State Policy enshrined in Article 47.

Section 24A in the Advocates Act, 1961 deals with the disqualification for enrolment:

(1) No person shall be admitted as an advocate on a State roll—

(a) if he is convicted of an offence involving moral turpitude;

(b) if he is convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955 (22 of 1955);

(c) if he is dismissed or removed from employment or office under the State on any charge involving moral turpitude.

Therefore, it is only conviction that will prevent an advocate from being enrolled. 

By Abhilash Kumar Singh and India Legal Bureau


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