Can a Bar Council, which receives a complaint under Section 35 of the Advocates Act 1961, apart from initiating proceedings under the Act, also refer the matter to the law enforcement authority like Police if the complaint reveals a serious/cognizable offence?
The settled legal position has been that every citizen is also an ‘informant’ of offences. Section 39 of the Criminal Procedure Code imposes a duty on the public to give information of certain offences and says that every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under some sections of the Indian Penal Code shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention.
Failure to report an offence is dealt under Section 202 of the Indian Penal Code which says that whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. However, in Section 202 IPC, the words “which he is legally bound to give” are significant.
Whether a statutory authority like Bar Council is legally bound to give information respecting the offence is debatable. However, if a complaint under Section 35 of the Advocates Act also reveals serious crime, the Bar Council will be well within its powers to inform the law enforcement authority about such a crime.
But this power shall be exercised with utmost caution and responsibility and shall not result in witch-hunt of a particular Advocate. Suppose, if the victim fears approaching the Police and rather approaches the Bar Council reporting a misconduct like sexual assault, the Bar Council is duty bound to, apart from initiating the proceedings under the Act, to inform the law enforcement authority like Police about ht serious crime revealed in the complaint. Allegations of fraud intra-parties or financial issues like cheating etc may not compel the Bar Council to undertake this exercise. However, serious crimes like blackmail or extortion using his position as an Advocate certainly falls within the ambit of ‘informant of crime.’ In such scenario, the Bar Council might well be within its powers and functions to also inform the Police about he crime. This shall be done only if the complainant has not filed any Police complaint or fears approaching the Police.
Conclusion: Apart from protecting the interests of the Advocates, the bar Councils are also duty bound to co-operate in law enforcement. Being a statutory authority, the Bar Councils can, in cases mentioned above, and subject to limitations, inform the law enforcement authority about serious crimes revealed in the complaints alleging professional misconduct. Bar Councils also must ensure that this power is not misused to unnecessarily target the advocate who has exposed illegalities.
S.Basavaraj, Member, Karnataka State Bar Council.
Daksha Legal 