Karnataka High Court Refuses To Quash Criminal Proceedings Against Advocate Practicing For A Decade Without Clearing AIBE
The Court directed the Council to make an appropriate mechanism in order to prevent the illegal practice, if they have not qualified in the AIB examination.
The Karnataka High Court dismissed a criminal petition filed to quash proceedings against an advocate who practiced for approximately ten years without clearing the mandatory All India Bar Examination (AIBE), holding that criminal jurisdiction and provisions of the Advocates Act can be invoked independently alongside disciplinary mechanisms.
It was held that practicing without qualification is an offense against society at large and issued comprehensive directions to the Karnataka State Bar Council to establish a digital tracking and monitoring mechanism to identify and curb illegal practice by unqualified advocates.
The Bench of Justice HP Sandesh directed the Karnataka State Bar Council to evolve a mechanism to identify such persons who are practicing illegally without getting the qualifications as per the Rules of the All India Bar Council to practice.
It directed, "The Karnataka State Bar Council, in respect of having enrolled the advocate and when the same is provisional enrollment in terms of the rule, make an appropriate mechanism in order to prevent the illegal practice, if they have not qualified in AIB examination...The State Bar Council is directed to maintain a record digitally for having made the date of enrollment and expiry period of two years..."
Advocate D Prabhakar appeared for the Petitioner, while HCGP Suhad Gowda appeared for the Respondents
Brief Facts of the Case
A petition was filed seeking to quash criminal proceedings arising out of a matter under Sections 419, 420, 120B and 511 of the IPC read with Section 45 of the Advocates Act.
A complaint was filed by an advocate stating that the accused person/Petitioner was practising before the courts without passing the AIBE Examination.
Contentions of the Parties
The Petitioner submitted that the complainant filed a malicious prosecution against the petitioner, in spite of being fully aware that the allegations made against the petitioner were under the Advocates Act and the same cannot be tried by the Trial Court, and incorporated the alleged offence punishable under the IPC.
It was submitted that though there were no ingredients in the complaint regarding the said offences being committed, the Trial Court committed an error in referring the matter under Section 156(3) of Cr.P.C.
It was argued that the allegations that the petitioner committed professional misconduct under the Advocates Act and, if so, the said act of misconduct was punishable under Section 35 of the Act, and it was only to be tried and disposed of by the Disciplinary Committee of the State Bar Council and not by the Court.
The State Bar Council submitted that the contents of the complaint were very clear that the petitioner had practised in various Courts for about 10 years without clearing the mandatory AIB Examination in violation of the applicable rules of the Bar Council of India.
It was also contended that the petitioner subsequently cleared the AIB Examination in 2021 and the same cannot retrospectively validate his practice, and the same would not extinguish his criminal liability that had already arisen.
Observations/Findings of the Court
The main questions for the consideration of the Court were: 1. whether the complainant could invoke criminal jurisdiction against the petitioner invoking the offences under the Indian Penal Code as well as under the Advocates Act, 1961, in view of practice without clearing the AIB Examination; 2. Whether the complainant had locus standi to institute a criminal complaint against the petitioner without approaching the Bar Council; and 3. Whether the Court can exercise the inherent power under Section 482 of Cr.P.C. in favour of the petitioner.
The Court observed that the contention of the petitioner's counsel was that there cannot be any criminal prosecution before the Court for those offences and that, if there are any grievances, they ought to have approached the Karnataka State Bar Council.
For the second issue, the Court noted that vide Resolution No.73/2010 AIBE Rules were framed, and the application for certificate of practice was also very clear that the said certificate of practice shall be issued by the Bar Council of India to the address of the successful advocate within 30 days from the date of declaration of results having succeeded in the said examination. But in the case at hand, no such examination was passed by the petitioner, and no such certificate was issued within the prescribed period.
Thirdly, the Court reiterated that anyone can have locus standi and also can set the law in motion. Further, the Court said that Section 45 of the Act is a penal provision which prescribes a penalty for a person illegally practicing in a court or before another authority; therefore, the Judicial Magistrate First Class is permitted to proceed with the case under Section 45 of the Act and powers are given to the Magistrate to deal with Section 45 of the Act.
The Court held, "Having considered the principles laid down in the judgments referred supra, it is very clear that the complainant can invoke criminal jurisdiction against the petitioner, invoking the offences under the Indian Penal Code as well as under the Advocates Act, 1961, in view of practicing without clearing the AIB examination. The judgments which have been referred supra are very clear that the complainant has got locus standi to institute a criminal complaint against the petitioner, even without approaching the Karnataka State Bar Council. In the case on hand, the complainant had approached the police, but police have not taken any action but issued the NCR. Hence the complainant was made to approach the Court."
It was held that the Court has jurisdiction to order an investigation under Section 156(3) of Cr.P.C., entertaining the complaint, and there is no need to exhaust the remedy before the State Bar Council only; the State Bar Council does not have exclusive jurisdiction; even courts also have the jurisdiction to deal with the matter when such factual aspects are not in dispute.
The Court held, "It is also the duty of the Karnataka State Bar Council to make a mechanism to identify such practice, if such persons who have been enrolled are not completed and get through in the examination. It is not the only duty of the Karnataka State Bar Council to enroll and it is also the duty of the State Bar Council to maintain a roll in respect of those who are eligible and not eligible to practice. If such persons are continued to practice without clearing the AIB examination, make specific mechanism, identify such persons and take immediate action against them."
The Bar Council was also directed to track such advocates who have enrolled but not qualified to continue the practice and prepare the list of suspended role of advocates in order to curb the illegal practice.
Further, the Council was directed to make a specific mechanism so that the expiry of the said period of two years should come to, the expiry of the said period of two years.
The Council was also directed to take immediate steps to initiate action against such persons who have not qualified to continue the practice since it is an offence against the society at large.
Accordingly, the Court directed the Bar Council to file a report within 45 days and listed the matter on November 30, 2026.
Cause Title: M Prasanna Kumar v. State of Karnataka and Ors. [CRL.P No. 633 of 2020]
Appearances:
Petitioner: Advocate D Prabhakar
Respondents: High Court Government Pleader Suhas Gowda M. and Advocate G. Nataraj