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Professional ethics for legal person


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Professional ethics for legal person

  2. 2. CERTIFICATE 2011-12 This is to certify that _____________________________Student of Third Year B.L.S LL.B course has successfullycompleted the project of practical training I with ________grade in year 2011-12____________________ __________________Principal Incharge ___________________ College Stamp 2
  3. 3. INDEXSr. No. Content Pg. No. 1. Introduction – Legal Ethics & its Significance 4-4 2. Areas of Application 5-6 3. Ethics of Legal Profession 7-7 4. Professional Ethics 8-8 5. Advocates duty towards Court 8-9 6. Advocates duty towards Client 9 - 12 7. Advocates duty towards Opponent 12 - 12 8. Other Duties of an Advocate 12 - 15 9. Bench – Bar Relationship 16 - 17 10. Contempt of Court - Introduction 18 - 18 11. Contempt by Lawyers 18 - 19 12. Contempt by Judges, Magistrates & others 19 - 19 13. Contempt Liability of State, Corporate bodies & Officers 19 - 19 14. Contempt Proceedings, Nature & Features 20 - 21 15. Advocacy - Introduction 22 - 22 16. Advocacy Models 22 – 22 17. Case Laws related to Contempt of Court 23 - 26 18. Certificate from Advocate 27 - 27 3
  4. 4. INTRODUCTIONLegal Ethics & SignificanceThe word ethics is derived from the Greek word ethos (character), and from the Latinword mores (customs). Together they combine to define how individuals choose tointeract with one another. In philosophy, ethics defines what is good for the individualand for society and establishes the nature of duties that people owe themselves andone another. The following items are characteristics of ethics: • Ethics involves learning what is right and wrong, and then doing the right thing. • Most ethical decisions have extended consequences. • Most ethical decisions have multiple alternatives. • Most ethical decisions have mixed outcomes. • Most ethical decisions have uncertain consequences. • Most ethical decisions have personal implications. Legal profession is noble profession. The nobility of the legal profession ismaintained by the adherence and observance of a set of professional norms by thosewho adopt this profession. It is knows as legal ethics or the ethics of the legalprofession. The fundamental of the legal ethics is to maintain the owner and dignity ofthe law profession, to secure a spirit of friendly cooperation between Bench and Barin the promotion of highest standard of justice, to establish honorable and fairdealings of the counsel with his client, opponent and witness, to establish a spirit ofbrotherhood with bar. 4
  5. 5. Areas of application1) Conflict of interestA lawyer is at times faced with the question of whether to represent two or moreclients whose interest’s conflict. Quite aside from his ethical obligations, the legalsystems of the world generally prohibit a lawyer from representing a client whoseinterests conflict with those of another, unless both consent.2) Confidential CommunicationIn Anglo-American countries judicial decisions, legislation, and legal ethics generallyforbid a lawyer to testify about confidential communications between himself andhis client unless the client consents. Provisions regarding confidentiality are alsofound in such diverse legal systems as those of Japan, Germany, and Russia. Incountries in which the attorney’s obligation to protect state interests is given relativelygreater emphasis, there may be a duty to disclose information when it is deemed to beto the state’s advantage3) Advertising and solicitationTraditionally, advertising by lawyers was forbidden almost everywhere. It was a long-standing principle of legal ethics in Anglo-American countries that an attorney mustnot seek professional employment through advertising or solicitation, direct orindirect. The reasons commonly given were that seeking employment through thesemeans lowers the tone of the profession, that it leads to extravagant claims byattorneys and to unrealistic expectations on the part of clients, and that it isinconsistent with the professional relationship that should exist between attorney andclient. A more basic reason appears to have been the social necessity of restraining themotive of personal gain and of stressing the objective of service.4) FeesIn principle, attorneys are ethically enjoined to keep their fees reasonable, neither toohigh nor too low. Attempts to control fees have included the passage of general 5
  6. 6. statutes designed to regulate compensation for legal services of all sorts, as inGermany; the imposition of fees by courts in contentious matters, as in England andWales; and the establishment of advisory fee schedules by the legal profession, as inCanada, France, Spain, and Japan. In the United States, local bar associationssometimes enforced minimum fee schedules through disciplinary proceedings;however, the U.S. Supreme Court held in 1975 that such practices violated antitrustlaws.5) Criminal casesBoth the prosecution and the defense of criminal cases raise special ethical issues. Theprosecutor represents the state, and the state has an interest not only in convicting theguilty but also in acquitting the innocent. The prosecutor also has an ethical and, inconsiderable measure, a legal duty to disclose to the defense any information knownto him and unknown to the defense that might exonerate the defendant or mitigate thepunishment. He must not employ trial tactics that may lead to unfair convictions, norshould he prosecute merely to enhance his political prospects.6) GlobalizationAlthough economic globalization has contributed in important ways to the worldwidegrowth of the legal profession, it has also created the potential for conflict betweendifferent ethical traditions. In Europe, for example, standards of confidentiality for in-house counsel differ from those observed by independent attorneys, a fact that hascreated difficulties for some U.S.-trained lawyers working for European firms. InChina the rapidly increasing market for legal services has attracted legal professionalsfrom democratic countries, which generally do not share the Chinese conception of anattorney’s public obligations. It is likely that these kinds of challenges will beintensified by the continuing liberalization of the international legal market and by thedevelopment of technologies that enable lawyers to give advice from their offices toclients in distant and very different jurisdictions. 6
  7. 7. ETHICS OF LEGAL PROFESSIONMeaning, Nature and NeedProfessional ethics are a set of norms or codes of conduct, set by people in a specificprofession. A code of ethics is developed for each profession. Suppose you writearticles in a newspaper. Professional ethics require that you verify facts before youWrite that article, isn’t it? Simply put, professional ethics for lawyers in India laydown a set of guidelines, which defines their conduct in the profession that is highlycompetitive and dynamic. Indian law requires lawyers to observe professional ethicsto uphold the dignity of the profession.People are surprised when they hear that lawyers are expected to follow professionalethics and that they are accountable for dishonest, irresponsible and unprofessionalbehavior. Further, most people do not know that lawyers in India can lose the licenseto practice if they are found guilty of unethical practices that tarnish the dignity oftheir profession. A lawyer must adhere to the professional norms, for fair dealing withhis client and to maintain the dignity of the professionThe Bar Council of India is a statutory body that regulates and represents the Indianbar. It was created by Parliament under the Advocates Act, 1961. It prescribesstandards of professional conduct and etiquette and exercises disciplinary jurisdiction.It sets standards for legal education and grants recognition to Universities whosedegree in will serve as a qualification for students to enroll themselves as advocatesupon graduation. 7
  8. 8. PROFESSIONAL ETHICSSection 49(1)(c) of the Advocates Act, 1961 empowers the Bar Council of India tomake rules so as to prescribe the standards of professional conduct and etiquette to beobserved by the advocates. It has been made clear that such rules shall have onlywhen they are approved by the Chief Justice of India. It has been made clear that anyrules made in relation to the standards of professional conduct and etiquette to beobserved by the advocates and in force before the commencement of the Advocates(Amendment) Act, 1973, shall continue in force, until altered or repealed or amendedin accordance with the provisions of this act.Chapter II of part VI of the rules framed by the Bar Council of India deals with thestandards of professional conduct and etiquette. It contains several rules which laydown the standards of professional conduct and etiquette. These rules specify theduties of an advocate to the Court, client, opponent and colleagues, etc.The rules mentioned in chapter II of part VI of the rules of Bar Council of India maybe discussed as follow- Duty towards courtThe Bar Council of India has made certain rules so as to prescribe duties of anadvocate to the court. Such duties may be explained as follow- 1) During the presentation the case and while acting otherwise as an advocate before the court it is required to conduct himself with dignity and self respect. It is his duty to submit his grievances to the proper authority. The rule empowers the advocate to make complaint against judicial officer but it should be submitted to proper authority. 2) An advocate is required to maintain towards the court respectful attitude bearing in mind that the dignity of judicial office is essential for survival of free community. 3) Rule has made it clear that no advocate shall influence the decision of the court by any illegal means. It prohibits the private communication with the 8
  9. 9. judge relating to pending case. If any advocate attempt to influence the decision of court by illegal means then it may amount to misconduct. 4) The rule requires the advocate to use his best effort to restrain and prevent his client from resorting to sharp or unfair practice opposite from council or parties which the advocate himself ought not to do. 5) An advocate shall appear in court at all times only in the prescribe dress and his appearance shall always be presentable. 6) An advocate shall not enter appearance act, plead, or practice in any way before a court, tribunal, or authority mentioned in section 30 of the Advocates Act, 1961 if the sole or any member thereof is related to the advocate as father, nephew, grandfather, son, grandson, uncle, brother, first cousin, husband, mother, wife, daughter, sister, niece, sister-in-law, mother-in-law, and father-in-law. 7) The rule requires the advocate not to wear bands or gowns in public place other than in court except on such ceremonial occasions and at such places as the Bar Council of India and the court may prescribe. 8) The rule provides that an advocate shall not appear in or before any court or tribunal or any other authority for or against an organization, institution, society, or corporation if he is a member of executive committee of such organization, institution, society, or corporation. 9) An advocate shall not act or plead in any matter in which he himself has some pecuniary interest.Duty towards Client Rule 11 to 33 deal with the duties of an advocate to his client. These rules may be explained as follow- 10) Rule 11 provides that an advocate is bound to accept any brief in the court or tribunal or before any authority which he proposes to practice at fee consistent with his standing at bar and also nature of case. 11) Rule 12 provides that an advocate shall not withdraw from engagement once accepted without sufficient cause and unless reasonable and sufficient notice given to the client. 9
  10. 10. 12) Rule 13 provides that an advocate should not accept the brief or appear in a case in which he has reason to believe that he will be a witness.13) Rule 14 provides that an advocate shall at the commencement of his engagement and during the continuance thereof make all such full and frank disclosure to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgment in either engaging him or continuing the engagement.14) Rule 15 provides that it is the duty of an advocate to uphold the interest of his client fearlessly by all fair and honorable means without regard to any unpleasant consequences to himself or to any other.15) Rule 16 provides that an advocate appearing for the prosecution of criminal trial shall so conduct the prosecution that it does not lead to conviction of an innocent.16) Rule 17 provides that an advocate shall not commit directly or indirectly any breach of the obligation imposed by section 126 of Indian Evidence Act.17) Rule 18 provides that an advocate shall not at any time be a party to the fomenting litigation.18) Rule 19 makes it clear that an advocate shall not act on the instruction of any person other than his client or his authorized agent.19) Rule 20 provides that the fee of an advocate depending upon the success of the sue he is considered as oppose to public policy. Contract for contingent fee is also hit by section 23 of the Indian Contract Act.20) Rule 21 provides that an advocate shall not buy or traffic in or stipulate for or agree to receive any share or interest in any actionable claim.21) Rule 22 provides that an advocate shall not directly or indirectly bid foe or purchase either in his own name or any other name for his own benefit or benefit of any other person, any property sold in execution of decree or other proceeding in which he was professionally engaged.22) Rule 23 provides that an advocate shall not adjust fee payable to him by his client against his own personal property or liability to the client which liability does not arise in course of his employment as an advocate.23) Rule 24 provides that an advocate shall not do anything whereby he abuses or take advantage of the confidence repose in him by his client. 10
  11. 11. 24) Rule 25 provides that an advocate should keep an account of clients money entrusted to him and accounts should show amount received from the client or on his behalf the expenses incurred for him and the debits made on account of fees with the respective dates and all other necessary particulars.25) Rule 26 provides that where money are received from or on account of client, the entries in the account should contain a reference as to whether the amount have been received for fees or expenses and during the course of the proceeding no advocate shall accept with the consent in writing of the client concerned be at liberty to divert any portion of the expenses towards fee.26) Rule 27 provides that where any amount is received or given to him on behalf of his client, the fact of such receipt must be intimated to the client as early as possible. If the client demands the payment of such money and in spite of such demand the advocate does not pay him, he will be guilty of professional misconduct.27) Rule 28 provides that after termination of the proceeding the advocate shall be at liberty to appropriate towards the settle fee due to him any sum remaining unexpanded out of the amount paid or send to him for expenses or any amount that has come into his hands in that proceeding.28) Rule 29 provides that if the fee has been left unsettled the advocate can deduct out of any money of the client remaining in his hand at the termination of the proceeding for which he had been engaged.29) Rule 30 provides that the copy of clients account shall be furnish to him on demand provided the necessary charges are paid.30) Rule 31 requires an advocate not to enter into arrangements whereby funds in his hands are converted into loans. It makes it clear that an advocate shall not enter into arrangements whereby funds in his hands are converted into loans.31) Rule 32 prohibits an advocate to lend money to his client for the purpose of any action for legal proceeding in which he is engaged by such client. It provides that an advocate shall not lend money to his client foe the purpose of any action or legal proceeding in which he is engaged by such client. 11
  12. 12. 32) Rule 33 provides that an advocate who has at any time advice in connection with the institution of the suit appeal or matter as drawn pleading or acted for party shall not act appear or plead for the opposite party.Duty towards opponentRule 34 and 35 framed by the Bar council of India contain provisions as to the dutiesof an advocate to the opponent.Rule 34 provides that an advocate shall not in any way communicate or negotiateupon the subject matter of controversy with any party represented by an advocateexcept through that advocate.Rule 35 provides that an advocate shall do his best to carry out all legitimate promisesmade to the opposite party even though not reduced to writing or enforceable underthe rules of the court. It is the duty of the advocate not to engage in discussion orargument about the subject of the dispute with the opposite party without notice of hiscounsel. Resolution 43 of Hoffman provides- “I will never enter into any conversation with my opponent’s client relative to hisclaim or defence, except with the consent and in the presence of his counsel.”Other duties 1) Rule 40 requires every advocate on the rolls of the State Bar Council to pay a certain sum to the state bar council. Rule 41 provides that all the sums so collected by the state bar council shall be credited in a separate fund to be known as “Bar Council of India Advocates welfare fund for the State” and shall be deposited in the bank as provided there under. According to rule 41(2) the Bar Council of India Advocates Welfare fund Committee for the State shall remit 20% of the total amount collected and credited to its account, to the bar council of India by the end of every month which shall be credited by the 12
  13. 13. Bar council of India and the Bar council of India shall deposit the said amountin a separate fund to be known as “Bar Council of India Advocates Welfarefund.”According to rule 41(3) the rest 80% of the total sum so collected by the BarCouncil of India Advocate Welfare Fund Committee for the state shall beutilized for the welfare of the advocates in respect of welfare schemessponsored by the respective State Bar Council.Rule 42 deals with the consequences of non payment of the said amount by theadvocate. It provides that if an advocate fails to pay the aforesaid sum withinthe prescribed time, the secretary of the State Bar Council shall issue to him anotice to show cause within a month why his right to practice be notsuspended. In case the advocate pays the amount together with late fee withinthe period specified in notice, the proceeding shall be dropped. If the advocatedoes not pay the amount or fails to show sufficient cause, a committee of threemembers constituted by the state bar council in this behalf may pass an ordersuspending the right of the advocate to practice.Rule 43 provides that an advocate who has been convicted of an offencementioned under section 24-A of the Advocates Act or has been declaredinsolvent or has taken full time service or part time service or engages inbusiness or any avocation inconsistent with his practicing as an advocate orhas incurred any disqualification mentioned in the Advocates Act or the rulesmade there under, shall send a declaration to the effect to the respective statebar council in which the advocate is enrolled, within 90 days from the date ofsuch disqualification.Rule 44 provides, an appeal shall lie to the bar council of India at the instanceof an aggrieved advocate within a period of 30 days from the date of the orderpassed under rule 42 and 43.Rule 44-A provides that there shall be a Bar council of India AdvocatesWelfare Committee consisting of five members elected from amongst themembers of the council. The term of the members of the committee shall beco-extensive with their term in the Bar Council of India. Rule 44-b makes itclear that the Bar Council of India shall utilise the funds received under rule41(2), stated above, in accordance with the scheme which may be framed fromtime to time. 13
  14. 14. 2) Duty in imparting training – rule 45 framed by the Bar Council of India makes it clear that it is improper for an advocate to demand or accept fees or any premium from any person as a consideration for imparting training in law under the rules prescribed by the State Bar Council to enable such person to qualify for enrolment under the Advocates Act, 19613) Duty to render legal aid – rule 46 provides that every advocate shall in practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an advocates economic condition, free legal assistance to the indigent and oppressed is one of the highest obligation, as an advocate owes to the society.4) Restriction on other employment – rules 47, 48, 49, 50, 51 and 52 deals with the restrictions on other employment. Rule 47 provides that an advocate shall not personally engage in any business but he may be a sleeping partner in a firm doing business provided that in the opinion of the appropriate state bar council the nature of the business is not inconsistent with the dignity of the profession. Rule 48 makes it clear that an advocate may be director or chairman of the board of directors of a company with or without any ordinary sitting fees, provided none of his duties are of executive character. An advocate shall not be a managing director or a secretary of any company. Rule 49 provides that an advocate shall not be a full time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice and shall taking up any such employment intimate the fact to the bar council on whose roll his name appears and shall thereupon cease to practice as an advocate so long as he continues in such employment. Rule 50 provides that an advocate who has inherited or succeeded by survivorship, to a family business may continue it, but may not personally participate in the management thereof. According to rule 51 an advocate may review parliamentary bills for a remuneration, edit legal text books at a salary, coach pupils for legal examination, set and examine question papers and subject to the rules against advertising and full time employment, engage in broadcasting 14
  15. 15. journalism, lecturing and teaching subject both legal and non legal. Rule 52makes it clear that nothing in these rules shall prevent an advocate fromaccepting after obtaining the consent of the state bar council, part-timeemployment provided that in the opinion of the state bar council, the nature ofthe employment does not conflict with his professional work and is notinconsistent with the dignity of the profession. 15
  16. 16. BENCH – BAR RELATIONThe Bar and Bench play an important role in the administration of justice. The judgesadminister the law with the assistance of the lawyers. The lawyers are officers of thecourt. They are expected to assist the court in the administration of justice. Actuallylawyers collect materials relating to the case and thereby assist the court in arriving ata correct judgment. The legal profession has been created not for private gain but forpublic good. It is a branch of the administration of justice. it is a partner with thejudiciary in the administration of justice.Since the lawyers are officers of the court, they are required to maintain towards thecourt respectful attitude bearing in mind that the dignity of the judicial office isessential foe the survival of the society. During the presentation of the case and whileacting otherwise before the court an advocate is required to conduct himself withdignity and self respect. He should not influence the decision of the court by anyillegal or improper means. Besides, he is prohibited the private communication withthe judge relating to a pending case. He should use his best efforts to restrain andprevent his client from restoring to unfair practices in relation to the court. Anadvocate should not consider himself mere mouthpiece of the client and shouldexercise his own judgment in the use of restrained language during arguments in thecourt.Besides, the court acts on the statements of the advocates and therefore the advocatesare under obligation to be absolutely fair to the court. They are required to makeaccurate statements of facts and should not twist them. An advocate is under duty notto misguide the court.An advocate should not be servile and in case there is proper ground for complaintagainst a judicial officer, it is not only his right but also duty to submit his grievancesto the proper authorities. He should always bear in mind that he is an officer of thecourt and part of the administration of justice. If the courts or judges are notrespected, the whole administration of justice, of which he is a part, will result in thecomplete death of the rule of law. 16
  17. 17. Many duties of the lawyers to the court are confined by the Bar Council of India. Thebreach of such duties is taken as professional misconduct and it is punished inaccordance with the provisions of the Advocates Act. Actually, self restrain andrespectful attitude towards the court, presentation of correct facts and law with abalance mind and without over statement, suppression, distortion or embellishmentsare requisites of good advocacy. It is the duty of lawyer to uphold the dignity anddecorum of the court and must not do anything which brings the court itself in todispute.Mutual respect is necessary for the maintenance of the cordial relations between thebench and the bar.On account of such importance of the judges in the maintenance of the orderlysociety, it is the duty of the lawyers to play constructive role in the administrative ofjustice. They must be respectful to the judges but at the same time, in case of properground for complaint against a judge, they should submit the complaint to the properauthority in proper manner. 17
  18. 18. CONTEMPT OF COURTMeaning and NatureThe Contempt of Court Act, 1971 defines contempt of court for the first time. There isno statutory definition of contempt of court. Whatever definition provided underunder this act is not a definition but only classification of the term contempt of court.Contempt of court in general means to offend the dignity of the court and lower theprestige of the court.Halsbury defines as follow “any act done or writing publish which is calculated tobring a pole or judge into content or lower his authority or to interfere with the duecourse of justice or the lawful process of the court is contempt of court.”Contempt of court is disobedience to court by acting in opposition to the authority,justice and dignity thereof. It signifies a willful disregard or disobedience of courtsorder. Section 2(a) of the Contempt of Court Act, 1971 defines contempt of court ascivil contempt or criminal contempt.Contempt by LawyersOn account of nature of duty to be discharged by the lawyers and the judges they mayget into heated by law which may result in contempt of court. There are severalinstances of the misconduct such as using insulting language against the judge,suppressing the facts to obtain favorable order, imputation of partiality and unfairnessagainst the judge. A council who advices his client to disobey the order of court isalso held liable for contempt of court. Attacking the judiciary in the bar councilelection is taken as contempt of court. If the council refuses to answer the question ofthe court is also liable for contempt of court.In Re Ajaykumar Pandey case the Supreme Court held that advocate usingintemperate language against various judicial officers and attributing motives to themwhile discharging there judicial function would be held guilty of contempt of court. In 18
  19. 19. this case such advocate was sentenced or punished to 4 months simple imprisonmentand fine of rupees 1000/-.Contempt by judges, magistrates or other person acting judiciallySection 16 of Contempt of Court Act, 1971 makes judges, magistrates and otherperson liable for contempt of court. This section provides that subject to the provisionof any law for time being in force a judge, magistrate or other person acting judiciallyshall also be held liable for contempt of his own court or any other court in samemanner as any individual is liable and provision of this act shall also be appliedaccordingly. This provision is not applicable to any reward or expression delivered bya judge in a matter which came before him in appeal or revision.Contempt liability of state, corporate bodies and there officersAs state becomes welfare state, now it is well settled that state shall not immune fromcontempt liability and therefore it will be held liable for contempt of court. InMohammad Aslam v. Union of India the chief minister of Uttar Pradesh Kalyan Singhhad given the undertaking to the court for protecting the Babri Masjid in his personalcapacity as well as in his official capacity. He was found guilty of willfullycommitting breach of undertaking and therefore the court sentenced him to one daytoken imprisonment and fine of rupees 2000/-. The minister or officer of governmentis also either in his official capacity or if there is personal element contributing tocontempt in his personal capacity, is liable in contempt. 19
  20. 20. CONTEMPT PROCEEDING – NATURE AND MAIN FEATURESContempt jurisdiction is a special jurisdiction. Summary procedure is a special featureof the contempt proceeding. In England the common law has power to deal summarilywith contempt committed in their presence. However, in the early days the distinctionwas made between the acts in and out of the presence of the judge. The summaryprocedure was adopted in case of the contempt committed in presence of court andnot in the case committed outside the court, except the contempt by the officer of thecourt. In India also the courts of record which are provided under article 229 of theconstitution can deal with summary of all types of contempt. It was held in Re AbdulHassan Jauhar 1926, that there is uniformity in the judicial opinion that the power topunish summarily for contempt is not a creature of statute but inherent incident ofevery court of record i.e. it is a power available to every court of record because beinga court of record. The high court and federal court were recognized as courts ofrecords even under the government of Indian Act, 1935. The existing constitution ofIndia contents specific provision for recognizing the high court and Supreme Court ascourt of record. Article 129 provides that the Supreme Court shall be court of recordand shall have all the powers including the power to punish for contempt itself.Similarly article 215 provides that every high court shall have power which includespower to punish for contempt of itself and such high court considers court of record aslike article 129.Contempt in face of subordinate courtProvisions of section 14 apply only to the contempt in face of Supreme Court andhigh court. They do not apply to the subordinate court. In case of subordinate court itcan take immediate action under section 228, 345 and 346 of Indian penal code andcriminal procedure code. Section 345 of criminal procedure code lays down theprocedure or investigation and punishment for the offences specified in section 175,178, 179, 180 or 228 of Indian penal code. 20
  21. 21. Contempt outside court which is known as constructive contemptSection 15 of the act deals with criminal contempt other than those covered by section14. Section 15 of contempt of court act, 1991 read as cognizance of criminal contemptin other cases. In case of criminal contempt other than referred under section 14 theSupreme Court or high court maintain action on its own or motion made by a. Advocate general b. Any other person with the comment in writing of advocate general c. In relation to any high court of the union territory of Delhi, such law officer as the central government may specify in the official gazette or any other person on behalf of such law officer. 21
  22. 22. ADVOCACYAdvocacy is speaking up for, or acting on behalf of, yourself or another person.The other person is often receiving a service from a statutory or voluntaryorganization and is referred to throughout this handbook as the service user.Advocacy can help service users to: • Make clear their own views and wishes; • Express and present their views effectively and faithfully; • Obtaining independent advice and accurate information; • Negotiate and resolve of conflict.Some people aren’t clear about of their rights as citizens, or have difficulty in fullyunderstanding these rights. Others may find it hard to speak up for themselves.Advocacy can enable people to take more responsibility and control for thedecisions which affect their lives.ADVOCACY MODELS • SELF ADVOCACY • CITIZEN ADVOCACY. • CRISIS ADVOCACY • PEER ADVOCACY. • PROFESSIONAL ADVOCACY • COLLECTIVE ADVOCACY 22
  23. 23. CASE LAWS RELATING TO CONTEMPT OF COURTCase No: Criminal Appeal No(s). 1108 of 2002)Roy Fernandes Appellant(s) versus State of Goa & Others Respondent(s)Date of Decision(mm/dd/yy): 2/1/2012.Judge(s): Honble Mr. Justice Asok Kumar Ganguly and Honble Mr. Justice T.S.Thakur.Subject Index: Indian Penal Code, 1860 — sections 143m 18, 323, 325 and 302 r/wsection 149 — conviction and sentence of the appellant under — appeal against — theincident took place on account of a sudden dispute arising out of the proposed fencingof the Chapel property which act was seen as an obstruction to the use of thepassage/pathway — whether the commission of murder by a member of an unlawfulassembly that does not have murder as its common object would attract the provisionsof Section 149 IPC — whether the appellant as a member of the unlawful assemblyknew that the murder of the deceased was also a likely event in prosecution of theobject of preventing him from putting up the fence —whether the sudden action ofone of the members of the unlawful assembly constitutes an act in prosecution of thecommon object of the unlawful assembly and whether the members of the unlawfulassembly knew that such an offence was likely to be committed by any member of theassembly — to consider — evidence on record proved that even when commission ofmurder was not the common object of the accused persons, they certainly had come tothe spot with a view to overawe and prevent the deceased by use of criminal forcefrom putting up the fence in question. However, no evidence to show that theappellant knew that in prosecution of the common object of preventing the putting upof the fence around the Chapel the members of the assembly or any one of them waslikely to commit the murder of the deceased — the conviction of the appellant foroffences punishable under Sections 323 and 325 of the IPC affirmed and the appellantis sentenced to the period of imprisonment already undergone by him while, hisconviction under section 302 r/w section 149 of IPC set aside — appeal disposed —sentence modified. 23
  24. 24. (Case No: Criminal Appeal No(s). 263 of 2012 with Crl. A. Nos.264,265,266,267,268,269,270,271,272,273,274,275-294,295-303 of 2012)JIK Industries Limited & Others Appellant(s) versus Amarlal V. Jumani andAnother Respondent(s)Date of Decision(mm/dd/yy): 2/1/2012.Judge(s): Honble Mr. Justice Asok Kumar Ganguly and Honble Mr. Justice JagdishSingh Khehar.Subject Index: Negotiable Instruments Act, 1881 — section 138 r/w section 141 —processes issued for the commission of the offences under — several Criminal WritPetitions filed challenging the processes — the High Court after dismissing the writpetitions held that sanction of a scheme under Section 391 of the Companies Act,1956 does not amount to compounding of an offence under Section 138 read withSection 141 of the N.I. Act — hence, the appeals — a scheme under Section 391 ofthe Companies Act does not have the effect of creating new debt. Therefore, theoffence which has already been committed prior to the scheme does not getautomatically compounded only as a result of the said scheme — the Supreme Courtheld that Section 147 of the N.I. Act must be reasonably construed to mean that as aresult of the said Section the offences under N.I. Act are made compoundable, but themain principle of such compounding, namely, the consent of the person aggrieved orthe person injured or the complainant cannot be wished away nor can the same besubstituted by virtue of Section 147 of N.I. Act — impugned judgment of the HighCourt affirmed — appeals dismissed.(Case No: Civil Appeal No(s). 1191 of 2012)Joshna Gouda Appellant(s) versus Brundaban Gouda & Another Respondent(s)Date of Decision(mm/dd/yy): 1/31/2012.Judge(s): Honble Mr. Justice Altamas Kabir and Honble Mr. Justice J. Chelameswar.Subject Index: Gram Panchayat Act, 1964 — section 31 r/w section 34 — electionpetition under — on the ground that the appellant was not eligible to contest theelection in view of Section 11(b) of the Act which declares that no member of `GramSasan shall be eligible to contest for the post of Sarpanch if he has not attained theage of 21 years — allowed — hence, the appeal — the Supreme Court held that theburden to proof the fact that the appellant was born on 20.6.1986 and thus, he was noteligible to contest the election on the ground that the appellant was not 21 years of age 24
  25. 25. on the relevant date rests squarely on the first respondent and since the firstrespondent failed to discharge the burden cast upon him, the election petition mustfail — impugned judgment under appeal set aside — appeal allowed.(Case No: Civil Appeal No(s). 1193 of 2012)Dr. Subramanian Swamy Appellant(s) versus Dr. Manmohan Singh & AnotherRespondent(s)Date of Decision(mm/dd/yy): 1/31/2012.Judge(s): Honble Mr. Justice G.S. Singhvi and Honble Mr. Justice Asok KumarGanguly.Subject Index: Prevention of Corruption Act, 1988 — whether a complaint can befiled by a citizen for prosecuting a public servant for an offence under the Preventionof Corruption Act, 1988 — whether the High Court was justified in refusing toentertain the writ petition filed by the appellant — to consider — illegal grant oflicences at the behest of Mr. A. Raja - respondent No. 2 — the appellant filed CivilWrit Petition for issue of a mandamus to respondent No.1 to pass an order for grant ofsanction for prosecution of respondent No. 2 — the High Court dismissed the petitionholding that when the matter is being investigated by the CBI, and the investigation isin progress, it would not be in fitness of things to issue a mandamus to the firstrespondent to take a decision on the application of the petitioner — hence, the appeal— no provision either in the 1988 Act or the Code of Criminal Procedure, 1973 whichbars a citizen from filing a complaint for prosecution of a public servant who isalleged to have committed an offence — the Supreme Court held that whileconsidering the issue regarding grant or refusal of sanction, the only thing which theCompetent Authority is required to see is whether the material placed by thecomplainant or the investigating agency prima facie discloses commission of anoffence — the material placed on record does not show that the CBI had registered acase or started investigation at the instance of respondent No.1. Even though theappellant repeatedly wrote letters to respondent No.1 highlighting the seriousness ofthe allegations and supplied the facts and documents which could be made basis forgrant of sanction to prosecute respondent No.2, the concerned officers in the PMOkept the matter pending and then took the shelter of the fact that the CBI hadregistered the case and the investigation was pending — impugned order set asidehowever, keeping in view the fact that the Court of Special Judge, CBI already took 25
  26. 26. cognizance of the offences allegedly committed by respondent No.2 under the 1988Act, no other direction issued — appeal allowed. 26