Madras High Court
K.Divya vs The Bar Council Of Tamil Nadu And ... on 26 June, 2018
Author: C.T.Selvam
Bench: C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 26.06.2018 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM And THE HONOURABLE MR.JUSTICE A.M.BASHEER AHAMED W.P(MD)No.12774 of 2018 K.Divya ... Petitioner vs. 1.The Bar Council of Tamil Nadu and Pondicherry, Rep. by its Secretary, Madras High Court Campus, Chennai - 600 104. 2.The Chairperson, Enrollment Committee, Bar Council of Tamil Nadu and Pondicherry, Madras High Court Campus, Chennai - 600 104. ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Mandamus, directing the Respondents to enroll the petitioner as an Advocate on the roll of Bar Council of Tamil Nadu and Pondicherry within a stipulated time. !For Petitioner : Mr.G.Prabhu Rajadurai For Respondents : Mr.Niranjan S.Kumar :ORDER
(Order of the Court was made by C.T.SELVAM, J.) By consent, Writ Petition itself, is taken up for final disposal.
2. Mr.Niranjan S.Kumar, learned Standing Council for Bar Council of Tamil Nadu and Pondicherry takes notice for the respondents.
3. The Writ Petitioner seeks issuance of a Writ of Mandamus, directing the Respondents to enroll the petitioner as an Advocate on the roll of Bar Council of Tamil Nadu and Pondicherry within a stipulated time.
4. The enrollment of the petitioner as an advocate on the roll of Bar Council of Tamil Nadu and Pondicherry is held up for the reason that a case stands registered against the petitioner in Crime No.469 of 2017 for the offences under 153(A) and 505(1)(b) I.P.C. r/w 66(F) of Information Technology Act, 2000 on the file of Othakadai Police Station. One other case pending in C.C.No.545 of 2011 on the file of learned Judicial Magistrate No.2, Madurai does not stand in the way of the petitioner since all offences alleged against her therein attract punishment below three years.
5. Learned Standing Counsel for the respondents drew our attention to the position that a Full Bench of this Court W.A.Nos.1590 and 1670 of 2015 confirmed the finding of a learned Single Judge passed in S.M.Anantha Murugan v. The Chairman, Bar Council of India, New Delhi (2015 (6) CTC 22) to the following effect:
"3. Bar Council of India shall direct the State Bar Councils not to enrol any law graduate with pending criminal cases except bailable cases attracting punishment upto three years and compoundable offences involving matrimonial, family and civil disputes, till the changes are brought in the Advocates Act & Bar Council of India Rules."
6. We would without hesitation inform our reservations. Given the present day social fabric many a deserving candidate might be delayed/denied right to enrol as an advocate on false implication. We might unwittingly be making room for police power/play. Hon'ble Supreme Court in Arnesh Kumar v. State of Bihar & Another ((2014) 8 SCC 273) observed that power of arrest is one lucrative source of police corruption. Would we be wrong in stating that threat of false implications towards disenabling enrolment as an advocate would be another. However, the present case does not invite consideration of the decision of the Full Bench.
7. Learned counsel on either side inform that under order in Crl.O.P.(MD) No.10701 of 2017 investigation in Crime No. 469 of 2017 for the offences under 153(A) and 505(1)(b) I.P.C. r/w 66(F) of Information Technology Act, 2000 on the file of Othakadai Police Station stands stayed. Cognizance of offences under Sections 153(A) and 505(1)(b) of I.P.C. cannot be taken by a Court without proper sanction. Offences under Sections 153(A) and 505(1)(b) of I.P.C. alleged against the petitioner attracts punishment not beyond 3 years. Section 66-F of Information Technology Act, 2000 reads as follows:
"66-F. Punishment for cyber terrorism.?(1) Whoever,? (A) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people by?
(i) denying or cause the denial of access to any person authorised to access computer resource; or
(ii) attempting to penetrate or access a computer resource without authorisation or exceeding authorised access; or
(iii) introducing or causing to introduce any computer contaminant, and by means of such conduct causes or is likely to cause death or injuries to persons or damage to or destruction of property or disrupts or knowing that it is likely to cause damage or disruption of supplies or services essential to the life of the community or adversely affect the critical information infrastructure specified under Section 70; or (B) knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons of the security of the State or foreign relations; or any restricted information, data or computer database, with reasons to believe that such information, data or computer database so obtained may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism.
(2) Whoever commits or conspires to commit cyber terrorism shall be punishable with imprisonment which may extend to imprisonment for life."
Offence under Section 66-F of Information Technology Act, 2000 is said to have been committed by the petitioner through her being party to a documentary on "Manual Scavenging." Informing that such offence by no stretch of imagination can be said to be attracted in the facts of the particular case, there shall be direction to the Respondents to enrol the petitioner as an Advocate on the roll of Bar Council of Tamil Nadu and Pondicherry on or before 27.06.2018. No costs.
8.Mr.Niranjan S.Kumar, learned Standing Counsel for the respondents undertakes to inform the Bar Council of Tamil Nadu and Pondicherry that the petitioner may be permitted to enrol as an advocate on 27.06.2018.
To
1.The Secretary, Bar Council of Tamil Nadu and Pondicherry, Madras High Court Campus, Chennai - 600 104.
2.The Chairperson, Enrollment Committee, Bar Council of Tamil Nadu and Pondicherry, Madras High Court Campus, Chennai - 600 104.
.