Advocate who practiced for 10 years without clearing AIBE can face criminal proceedings; Bar Council’s disciplinary jurisdiction is not exclusive: Karnataka HC

Karnataka High Court: In a petition filed under Section 482, Criminal Procedure Code, 1973 (CrPC) to quash the entire proceedings registered under Sections 419, 420, 120-B and 511, Penal Code, 1860 (IPC) read with Section 45, Advocates Act, 1961 on the file of the Principal Civil Judge and JMFC, Bangarpet, a Single Judge Bench of H.P. Sandesh, J. dismissed the petition and permitted the police to proceed against the petitioner in accordance with law. The Court held that the complainant could invoke criminal jurisdiction for offences under both the IPC and the Advocates Act, and that the State Bar Council does not have exclusive jurisdiction in the matter. It added that whether Section 420 IPC and other offences are attracted is a matter for the Investigating Officer, and that maintainability of the Section 45 charge must be considered independently of the IPC allegations when the report is filed before the Magistrate.

Background

The complainant, an advocate practicing before the courts at Bangarpet, KGF and across Kolar District, filed a private complaint against the petitioner. He alleged that the petitioner was provisionally enrolled with the Karnataka State Bar Council in 2011, but had practiced before the Bangarpet, KGF and Kolar Courts without passing the AIBE as required under Section 24, Advocates Act and the All India Bar Examination Rules, 2010 (AIBE Rules, 2010) According to the complaint, the petitioner thereby cheated the Judges, clients and advocates by misrepresentation and committed professional misconduct. The complaint also relied on an endorsement from the State Bar Council stating that the petitioner’s name did not appear in the list of AIBE passers.

The complainant stated that he had first approached the Bangarpet Police Station which treated the matter as non-cognizable, and that senior police officers did not entertain his complaint. He then approached the Magistrate. The Magistrate recorded that the documents prima facie disclosed an offence, took cognizance of the offences under Sections 419, 420, 120-B and 511 IPC read with Section 45, Advocates Act, and referred the matter to the police under Section 156(3) CrPC. The High Court observed that this procedure was erroneous, since the Magistrate can either take cognizance or refer the matter under Section 156(3), and not both. It noted that the order was in effect a pre-cognizance order, and that despite the procedural error the matter was ultimately referred for investigation. The petitioner’s revision was held not maintainable against an order under Section 156(3), with liberty to challenge the order in accordance with law. Hence, the present petition.

Issues

1. Whether the complainant can invoke criminal jurisdiction against the petitioner for offences under the IPC and the Advocates Act, for practicing without clearing the AIBE?

2. Whether the complainant has locus standi to institute a criminal complaint against the petitioner without approaching the Bar Council, in view of the suspension of the petitioner’s enrolment for not clearing the AIBE?

3. Whether the Court can exercise its inherent power under Section 482 CrPC in favour of the petitioner on the facts of the case?

Analysis and Findings

The Court first noted that the material facts were not in dispute. The petitioner enrolled as an advocate in 2011, after the Bar Council of India framed the 2010 Rules requiring enrolled advocates to qualify in the examination within 2 years of enrolment, failing which the enrolment is suspended and the advocate cannot practice or file a vakalatnama. The petitioner admitted that he practiced for almost 10 years, though entitled to do so only for two, did not take the examination for nearly a decade, and qualified only in 2021. The Court noted that under the AIBE Rules, a certificate of practice is issued by the Bar Council of India within 30 days of declaration of results to a successful advocate, and no such certificate had been issued to the petitioner within the prescribed period.

On locus standi, the Court relied on A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500, which held that locus standi of the complainant is a foreign concept to criminal jurisprudence, except where the statute creating an offence provides for the eligibility of the complainant. Anyone can set the criminal law in motion unless the statute indicates otherwise, and the CrPC envisages two parallel and independent agencies for taking offences to court. The Court also noted that a criminal offence is not an injury confined to the individual directly affected, but an offence against the society at large, i.e. against the institution.

On the jurisdiction of the criminal court, the Court relied on the following authorities:

1. Rajendra Singh v. Surendra Singh, 1992 SCC OnLine MP 55: Only advocates are entitled to practice in courts, Section 45, Advocates Act is a penal provision for persons illegally practicing before a court or authority, and the JMFC can proceed under it.

2. Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409: The disciplinary jurisdiction of the Bar Councils for professional misconduct is different from the jurisdiction of courts, the two coexist independently, and action under one does not bar action under the other.

3. BCI v. Bonnie Foi Law College, (2023) 7 SCC 756: The Supreme Court discussed Sections 24 and 49, Advocates Act and held that quality of lawyers is part of the administration of justice, and that the Bar Council of India may introduce the AIBE under Section 49(1)(ah) as a post-enrolment examination, since “half-baked lawyers serve no purpose”.

4. Sessy Xavier v. State of Kerala., 2021 SCC OnLine Ker 9618 : Where a person who was not a law graduate or an enrolled advocate practiced in the District Courts, presenting oneself as an advocate and obtaining briefs would amount to cheating the public, the Bar and the judiciary.

5. Yogendra v. State of U.P., 2026 SCC OnLine All 25632: Under Rules 9 to 11, AIBE Rules, a law graduate enrolled under Section 24 is not entitled to practice unless he qualifies in the AIBE, and the certificate of practice is valid for 5 years.

The Court also took note of the Certificate of Practice and Place of Practice (Verification) Rules, 2015, including Rules 5 and 20.4 (publication of the list of non-practicing advocates by the State Bar Council), and of two clarifications:

1. The Karnataka State Bar Council’s letter dated 7 August 2026 states that failure to pass the AIBE within 2 years automatically suspends the license to practice, without any need for cancellation or re-enrolment, and that disciplinary action under Section 35 is also available. Suspension does not mean cancellation of enrolment, and on passing the examination the practice rights are restored without fresh enrolment, but the advocate must obtain a fresh certificate from the Bar Council.

2. The Bar Council of India’s letter dated 29 July 2026, issued in light of Bonnie Foi Law College, states that where an advocate fails to pass the AIBE within the prescribed period, the entitlement to practice remains suspended until the advocate passes. During suspension, the advocate cannot sign or file a vakalatnama, act or plead before any court, tribunal or authority, advise or represent clients as an advocate, undertake professional work, or hold himself out as entitled to practice.

Drawing these together, the Court held that the disciplinary authority conferred on the Bar Council cannot be assumed by a court merely because the conduct relates to the legal profession. Equally, the existence of a disciplinary mechanism does not by itself extinguish the jurisdiction of a competent criminal court to examine conduct that independently satisfies the ingredients of a criminal offence. The nature of the proceeding, the statutory provision invoked, and the relief sought must be examined to determine whether criminal jurisdiction is attracted. The State Bar Council has the function of determining misconduct cases under Sections 6(1)(c) and 35, Advocates Act, but the applicability of Section 45, which punishes a person who practices in a court or before an authority when not entitled to do so, must be considered separately. Since the petitioner’s enrolment permitted practice only for 2 years, after which his practice ceased on his not clearing the examination, Section 45 was pressed into service, and the complainant could invoke both Section 45 and the IPC offences.

The Court accordingly held that the complainant had locus standi to institute the criminal complaint even without approaching the State Bar Council. It also noted that the complainant had first approached the police, who took no action beyond issuing a non-cognizable report (NCR), which compelled him to approach the Court. The Court held that the State Bar Council does not have exclusive jurisdiction; that courts also have jurisdiction where the factual aspects are not in dispute, and that there was no need to exhaust a remedy before the State Bar Council. As the matter had only been referred for investigation under Section 156(3) CrPC, it was for the investigating officer to investigate whether Section 420 IPC and the other offences are attracted, and the maintainability of the Section 45 complaint must be considered independently of the Section 420 IPC allegations when the report is filed before the Magistrate. On this basis, the Court found no ground to exercise its inherent power under Section 482 CrPC in the petitioner’s favour.

The Court also made observations on the Bar Council’s role. It held that it is not only the duty of the Karnataka State Bar Council to enroll advocates, but also to maintain a roll of those who are eligible and not eligible to practice, to identify enrolled persons who have not qualified, and to take immediate action against them. It described it as unfortunate that the petitioner practiced for more than a decade without appearing for the AIBE and found it appropriate to issue guidelines to the State Bar Council.

Decision

The Court dismissed the criminal petition and permitted the jurisdictional police to proceed against the petitioner in accordance with law and to submit the report before the trial court expeditiously. It directed the Karnataka State Bar Council to evolve a mechanism to identify persons practicing without the qualification required under the Bar Council of India’s rules, with the following directions:

1. To put in place an appropriate mechanism to prevent illegal practice by provisionally enrolled advocates who have not qualified in the AIBE.

2. To maintain a digital record of each advocate’s date of enrolment and the expiry of the two-year period.

3. To track advocates who have enrolled but not qualified to continue practicing, and to prepare a list of suspended advocates.

4. To ensure that the expiry of the two-year period automatically comes to the Bar Council’s notice, so that it can act against illegal practitioners.

5. To take immediate steps to initiate action against persons who have not qualified to continue practicing, since it is an offence against society at large.

6. To maintain an integrated enrolment record and verify AIBE results with the aid of the Bar Council of India.

7. To periodically review cases where the period for clearing the AIBE has expired and obtain the available records for initiating action.

8. To give such advocates an opportunity to explain discrepancies before action is taken, in keeping with the principles of natural justice, and to evolve a mechanism for final determination of their entitlement to practice where discrepancies are clarified.

9. To report to the Court within 45 days on the mechanism evolved. The Registry was directed to send a copy of the order to the State Bar Council forthwith, and the matter was listed on 30 November 2026.

[M. Prasanna Kumar v. State of Karnataka, Criminal Petition No. 633 of 2020, decided on 17-10-2026]

Advocates who appeared in this case:

For the Petitioner: Adv. D. Prabhakar

For Respondent No. 1 (State): Suhas Gowda M., HCGP

For Respondent No. 3 (State Bar Council of Karnataka): Adv. G. Nataraj