The High Court of Karnataka at Bengaluru Bench has held that Bar Council disciplinary remedies need not be exhausted before a private criminal complaint is filed, and whether unauthorised practice attracts Section 45 of the Advocates Act or the alleged IPC offences must be examined through investigation. Accordingly, the Court dismissed the petition under Section 482 CrPC and permitted the jurisdictional police to proceed in accordance with law and submit their report expeditiously. It did not record a finding of criminal guilt.
The High Court noted that the petitioner enrolled in 2011 but continued practising for almost a decade without clearing the AIBE, despite the requirement to qualify within two years to continue practice. Thus, the Court held that a private complainant may set criminal law in motion without first approaching the State Bar Council. Disciplinary jurisdiction does not exclude criminal jurisdiction where the conduct independently satisfies the ingredients of an offence.
The Court also held that Section 45 of the Advocates Act could be invoked for practice without entitlement, notwithstanding enrolment. Whether Section 45, Section 420 IPC or the other alleged offences were attracted remained within the investigating officer’s domain. Accordingly, the State Bar Council was directed to maintain digital enrolment records, track expiry of the prescribed period, verify AIBE results and periodically identify unauthorised practice. Affected advocates must have an opportunity to explain discrepancies before action.
Briefly, the petitioner had sought quashing of a private complaint alleging offences under Sections 419, 420, 120-B and 511 IPC, read with Section 45 of the Advocates Act, 1961. The complaint alleged that, despite enrolling with the Karnataka State Bar Council in 2011, he continued practising without clearing the All India Bar Examination (AIBE).
The Magistrate referred the complaint for police investigation under Section 156(3) CrPC, where the petitioner argued that the allegations concerned professional misconduct within the Bar Council’s disciplinary jurisdiction, that his enrolment certificate did not describe his enrolment as provisional, and that he had subsequently cleared the AIBE in 2021.
A Single Judge Bench of Justice H.P. Sandesh noted that the petitioner had continued practising for almost a decade without clearing the AIBE, although the applicable rules required him to qualify within two years of enrolment to continue practising. It explained that failure to clear the examination within the prescribed period suspends the entitlement to practise, and subsequently passing the examination and completing the prescribed formalities permits resumption of practice.
The Court distinguished the Bar Council’s disciplinary powers from a criminal court’s jurisdiction to examine conduct independently satisfying the ingredients of a criminal offence. It also identified a procedural error in the Magistrate’s order, as a referral under Section 156(3) CrPC is a pre-cognizance step and cannot follow the taking of cognizance in the manner adopted here.
