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Section 35 – The Advocates Act, 1961

The Advocates Act, 1961

 

Section.35. Punishment of advocates for misconduct.

 

(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.

 

1[(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee mid direct the inquiry to be made by any other disciplinary committee of that State Bar Council;]

 

(2) The disciplinary committee of a State Council 2[***] shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate General of the State.

 

(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely: – –

 

(a) Dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;

 

(b) Reprimand the advocate;

 

(c). Suspend the advocate from practice for such period as it may deemed fit;

 

(d) Remove the name of the advocate from the State roll of advocates.

 

(4) Where an advocate is suspended from practice under clause(c) of subsection (3) he shall, during the period of suspension, be debarred from practicing in any court or before any authority or person in India.

 

(5) Where any notice is issued to the Advocate-General under subsection (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.

 

3[Explanation. -In this section 4[Section 37 and Section 38] the expression Advocate General’ and ‘Advocate-General of the State’ shall, in relation to the Union territory of Delhi, mean the Additional Solicitor General of India].

 

COMMENTS

 

(i) Fees of advocate were not paid and the advocate had retained files of his client for not paying his fees. Question as to whether fees payable or not to advocate being disputed question of fact cannot be adjudicated upon either by the High Court or by Supreme Court in proceedings filed by the client claiming return of his files (papers). It is open for the advocate to file appropriate proceedings for recovery of his fees; New India Assurance Co. Ltd. v. A.K. Saxena, AIR 2004 SC 311.

 

(ii) Where the solicitor calls to the property holders to his office to execute the release deeds in the name of his clients though such conduct is unprofessional, but he cannot be liable to be convicted under IPC and TADA, State of Maharashtra v. Bharat Chaganlal Raghani, AIR 2002 Sc 409.

 

(iii) When an advocate after accepting fees in a criminal case does not attend the trial day-to-day, he commits breach of his professional duty; S.J. Choudhary v. State, AIR 1984 SC 618.

 

1. Ins. by Act 60 of 1973, sec. 24 (w.e.f. 31-1-1974).

 

2. The words “, if it does not summarily reject the complaint,” omitted by Act 60 of 1973, sec. 24 (w.e.f. 31-1-1974)

 

3.
Ins. by Act 21 of 1964, sec. 17 (w.e.f. 16-5-1964).

 

4. Ins. by Act 60 of 1973, sec. 24 (w.e.f. 31-1-1974).

 

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