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A PROJECT REPORT
ON
PROFESSIONAL ETHICS AND ACCOUNTING
FOR LAWYERS
AND
BAR-BENCH RELATIONS
(CODE: K3005)
SUBMITTED BY
NAME:
ROLL NO:
SEM:LLB 3 Years 3RD SEM
DATE OF SUBMISSION:
INDEX
SR.NO TABLE OF CONTENTS PAGE NO
1. OBJECTIVE OF ADVOCATE ACT 1961
2. RESEARCH METHEDOLOGY
4. PROFESSIONAL ETHICS
5. STATE BAR COUNCIL
1) CONSTITUTION
2) POWER
3) FUNCTION
6. BAR COUNCIL OF INDIA
1) CONSTITUTION
2) POWER
3) FUNCTION
6. STANDARDS OF LAWYER
1) DUTY TO COURT
2) DUTY TO CLIENTS
3) DUTY TO OPPONENTS
4) DUTY TO PROFESSION
7 PROFESSIONAL MISCONDUCT
1) PUNISHMENT FOR MISCONDUCT
2) REMEDIES AGAINST THE ORDER OF PUNISHMENT
3) DISCIPLINARY COMMITTEE OF THE STATE BAR COUNCIL
7. BAR - BENCH RELATIONS
1) MEANING AND IMPORTANCE OF BAR - BENCH RELATIONS
2) ROLE OF THE BAR TO STRENGTHEN BAR BENCH RELATION
3) ROLE AND DUTIES OF JUDGES IN ADMINISTRATION OF
JUSTICE
8. CONTEMPT OF COURTS
1) MEANING AND NATURE OF CONTEMPT OF COURTS
2) CIVIL CONTEMPT
3) CRIMINAL CONTEMPT
4) PUNISHMENT FOR CONTEMPT COURT
5) CONSTITUTIONAL VALIDITY OF CONTEMPT OF COURT ACT,
1971
9. LEADING CASES ON PROFESSIONAL MISCONDUCT
10. LEADING CASES ON CONTEMPT OF COURTS
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OBJECTIVE
OF
ADVOCATE ACT 1961
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Sec 2. Of the Advocates act 1961 covers all the definition clause.
(j) "prescribed" means prescribed by rules made under this Act; (k)
"roll" means a roll of advocates prepared and maintained under this
Act; (l) "State" does not include a Union Territory; (m) "State Bar
Council" means a Bar Council constituted under section 3; (n)
"State roll" means a roll of advocates prepared and maintained by a
State Bar Council under section 17.
(2) Any reference in this Act to a law which is not in force in the
State of Jammu and Kashmir or in the Union Territory of Goa,
Daman and Diu, shall, in relation to that State r that territory, be
construed as a reference to the corresponding law, if any, in force in
that State or that Territory, as the case may be.
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RESEARCH
METHEDOLOGY
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RESEARCH METHEDOLOGY
PROFESSIONAL
ETHICS
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Legal Ethics & Significance
The word ethics is derived from the Greek word ethos (character), and from the Latin
word mores (customs). Together they combine to define how individuals choose to
interact with one another. In philosophy, ethics defines what is good for the individual
and for society and establishes the nature of duties that people owe themselves and
one another. The following items are characteristics of ethics:
• Ethics involves learning what is right and wrong, and then doing the right
thing.
The Bar Council of India is a statutory body that regulates and represents the Indian
bar. It was created by Parliament under the Advocates Act, 1961. It prescribes
standards of professional conduct and etiquette and exercises disciplinary jurisdiction.
It sets standards for legal education and grants recognition to Universities whose
degree in will serve as a qualification for students to enroll themselves as advocates
upon graduation.
Section 49(1)(c) of the Advocates Act, 1961 empowers the Bar Council of India to
make rules so as to prescribe the standards of professional conduct and etiquette to be
observed by the advocates. It has been made clear that such rules shall have only
when they are approved by the Chief Justice of India. It has been made clear that any
rules made in relation to the standards of professional conduct and etiquette to be
observed by the advocates and in force before the commencement of the Advocates
(Amendment) Act, 1973, shall continue in force, until altered or repealed or amended
in accordance with the provisions of this act.
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Chapter II of part VI of the rules framed by the Bar Council of India deals with the
standards of professional conduct and etiquette. It contains several rules which lay
down the standards of professional conduct and etiquette. These rules specify the
duties of an advocate to the Court, client, opponent and colleagues, etc.
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12. Do all other acts which are necessary for the effective
implementation of the above said functions.
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1. An Advocate shall show the due respect to the court and shall never act in any manner to undermine
the confidence in the judiciary.
2. He shall not exert or attempt to exert any personal influence on the decision of the court, nor shall
give any impression that he possesses personal influence with the judge before whom he normally
practices.
3. He shall be always punctual in attending courts in the prescribed dress.
4. He shall be fair and frank in the court proceedings.
5. He shall not include any fact which he knows to be false in the pleadings, petitions or affidavits.
6. He shall not ask for any adjournment of a case without genuine reasons.
7. He shall not communicate privately with the judges to influence them relating to any pending case.
8. He shall not speak ill of judges or use abusive remarks about them. But, if the judge behaves
improperly, it is not only the right but also his duty to report it to the proper authorities.
9. He shall not interrupt when the counsel for the otherside or the judge is speaking.
10. He shall appear in the court in the prescribed dress and his appearances shall always be presentable.
He shall not wear bands or gown in the public places.
11. He shall not practice before a judge if he is related to him.
12. He shall not act or plead in any matter in which he is pecuniarily(monetary) interested.
13. He shall not appear for any organization, institution, society or corporation if he is the member of the
executive committee of such organization, institution, society or corporation.
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A client is entrusting a case with an Advocate because of his trust and confidence on him. In order to
honour this trust and confidence the Bar Council of India rules 11-33 prescribes the following duties as duty
to the client.
1. An Advocate is bound to accept a case in the courts or tribunals where he is normally practicing.
2. He shall not withdraw from a case which he has already accepted without sufficient reasons. He
shall not withdraw from the case merely because his fees has not been paid in full. He shall withdraw
from the case only after giving a reasonable notice to his client. After his withdrawal he must refund
such part of the fees which is in excess in his hand.
3. He shall not accept a case in which he has reason to believe that he will be called as witness. If he
already engaged in a case in which he is called as a witness then he should return the case. But, if his
retirement will cause irreparable loss to the client then he can continue to appear as a lawyer.
4. He must make full and frank disclosures to his client relating to his connection with the parties and
his interest in the controversy which may likely to affect his clients interest.
5. He should fearlessly uphold the interest of his client by fair and honourable means without the fear of
any pleasant consequences to himself or to any other person. He shall not refuse to appear for an
accused person merely because in his personal opinion the accused has committed the offence.
6. An Advocate appearing as a prosecution counsel shall be fair and shall not conduct the prosecution
with hostility to the accused to secure conviction. He should not obstruct the defence counsel in
placing the relevant material evidence to prove the innocence of the accused.
7. He shall not disclose any matter communicated to him in his professional capacity to any other
person without the consent of his client.
8. He shall not be a party to fomenting of litigation.
9. He should act at the instructions of his client and not at the instruction of any other person.
10. He shall not stipulate a fee depending on the success of the case or agree to share the proceeds of the
litigation.
11. He shall not buy or agree to share the interest of the litigation.
12. He shall not directly or indirectly bid or purchase in his own name or in any other name any property
sold in execution of a decree in which he was engaged as a lawyer.
13. He shall not adjust fees payable to him by his client against his own personal liability to the client.
14. He shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by
the client.
15. He should keep regular accounts of the clients money entrusted to him. The account should show the
particulars of the amount received from the client and the expenses incurred for him.
16. He should maintain separate accounts for the amount received for the fees and for the expenses. The
amount received for the expenses shall not be converted for fees without the consent of the client.
17. Where any amount received on behalf of the client (either from the court or from any other person)
it should be intimated to the client as early as possible.
18. After the proceedings are over, he shall take the settled fee from the client’s money in his hand and
the balance, if any should be returned to the client.
19. If the Advocates fee is left unsettled, he shall take a reasonable fee from the client’s money in his
hand, after the proceedings are over.
20. A copy of the clients account shall be furnished to him on demand.
21. He shall not convert the client’s money in his hand as loan given to him by the client.
22. He shall not lend money to his client for the purpose of any legal proceeding in which he is engaged
as the lawyer. But, any amount given to his client in an unanticipated emergency shall not be treated
as beach of this duty.
23. An Advocate who has advised or prepared the pleadings or appeared for a party in any suit or appeal
shall not act, appear or plead for the opposite party.
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In addition to the above duties prescribed by the Bar Council of India an Advocate is expected to
perform the following duties also to the client.
1. He shall give advise to his client honestly and in good faith.
2. He shall prepare the case with due care and skill.
3. He shall submit all relevant documents before the court in support of the claim of his client.
4. He should attend the court on every day fixed for hearing of his client’s case.
5. He should return the whole fees received from his client, if he is not in a position to conduct the case.
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LAWYERS DUTY TO
OPPONENT
PARTY(RULE34&35)
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Rule 34 &35 deals with the duties of an Advocate to the opponent party. They are as follows.
1. Rule 34 provides that an Advocate shall not in any way communicate or negotiate upon the subject
matter of dispute with the opposite party directly. For any reasons, If we want to communicate
anything then it should be done through his Advocate.
2. Rule 35 provides that an Advocate shall do his best to carry out all legitimate promises made to the
opposite party. Even if such promises are not in writing or not enforceable under the rules of the
court, he must try his level best to perform his promises.
3. He shall not use unfair and malicious tactics against the opponents.
4. He shall not abuse the rules of evidence and the process of the court in order to injure the opponent.
5. He shall not make baseless attacks on the reputation of the opponent or his witness or unduly harass
them.
6. He may make concessions to the convenience of the opponent and his lawyer in fixing the date of
trial.
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DUTY TO PROFESSION
(RULE 36-40)
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Every Advocate owes an obligation to uplift the profession to which he belongs. He must avoid, any
conduct that may lead to lower the standards of the profession. He shall never forget that he belongs to the
noble profession. Following are some of his important dutiesto the profession. These duties are incorporated
with the intention of raising the standards of the profession.
1. An Advocate shall not speak ill of the profession. He should conduct himself in such a way to
enhance respect, sympathy and good feeling between the members of the profession and strive to
maintain the honour and dignity of the profession.
2. He shall not discuss in the newspapers any pending case or appeal.
3. He shall not in any way solicit cases by advertisement or otherwise.
4. He shall not act or plead in his professional capacity before any officer of the state not exercising
judicial or quasi-judicial powers.
5. He shall not appoint intermediaries for procuring cases and divide the fees between them or pay
commission to them for such work.
6. He shall not entertain or show any undue hospitality to any particular judge.
7. He shall not place himself in the situation which may be unbecoming of a member of the bar.
8. He shall not oppose the desire of his client for additional professional help or assistance from other
lawyers also.
9. He must appear in robes in the court proceedings. He shall not wear robes or gown in public places
except on ceremonial occasion.
10. He shall not act as a managing Director or a secretary of a company without the leave of the Bar
Council.
11. He shall not work as a full time salaried employee.
12. He shall not do any other business. An advocate who inherits any family business may continue it,
but he should not personally participate in the management of the business.
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PROFESSIONAL
MISCONDUCT
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Professional Misconduct
Misconduct means dereliction of duty. Professional misconduct means dereliction of duty relating to
Legal profession. Under S.35 of the Advocates Act, An Advocate is punishable not only for professional
misconduct but also for other misconduct. Other misconduct means a misconduct not directly connected
with the legal profession.
Professional misconduct arises as a result of serious dereliction of duties to the court, to the client, to
the opponent, to the colleagues, to the profession, to the public etc. Following are some of the instances of
professional misconduct.
The Disciplinary committee of the State Bar Council after hearing the Advocate concerned and the
Advocate general comes to the conclusion that the misconduct is proved that it may pass any of the following
orders, namely
CONTEMPT OF COURT
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CONTEMPT OF COURT
Object of the Act: The main object of the contempt of court Act is to protect the dignity and
decorum of the court and to uphold the majesty of law. The object is not to protect the judges from criticism.
By providing punishment for contempt of the court the ability to deliver fearless and impartial justice is
strengthened.
Definition: The definition given in the Act for the term contempt of court is not exhaustive. it is
difficult to define it by words, because the scope of contempt of court is very wide. Contempt means
(i)Any disrespect to the authority of law.
Types: Following are the types of contempt (i) Civil contempt and(ii)Criminal contempt.
Civil contempt
S.2(b)defines the term `civil contempt ’.`It means (i)Willful disobedience to any
judgemaent,decree,direction,order,writ or other process of a court;or(ii)Willful breach of an undertaking
given to a court.
For taking action for civil contempt on the ground of willful disobedience of court order, it should
be established that the court which has passed the order has jurisdiction to pass such order. Disobedience of
an order passed without jurisdiction is not a Contempt must prove that the court has no jurisdiction.
A willful breach of an unconditional undertaking given orally or in writing either in person or
through his Advocate will be treated as civil contempt. When undertakings are given orally , the court shall
record it in the proceedings.
Breach of a compromise entered in the court cannot be treated as civil contempt. The remedy in such
cases is only a civil suit for specific performance of the promise.
Punishment: S.12 prescribes the punishment for contempt. court may award any one of the
following punishments.
(i) Simple imprisonment for a term which may extend to 6 months.
(ii) Fine which may extend to Rs.2000/-.
(iii)Both the punishment ie., Imprisonment and fine together.
Criminal contempt
S.2C defines the term `criminal contempt’. It means
(i) Publication of any matter (by words, spoken or written, or by signs or by visible representation or
otherwise.)
(ii) Doing of any other act which
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(a) Scandalises or tenda to scandalide, or lowers or tends to lower the authority of any court; or
(b) Prejudices or interferes or tends to interfere with the due course of judicial proceeding; or
(c) Interferes or tends to interfere with, or obstructs or tends to obstruct the Administration of justice.
Publication means publishing something orally or in writing through news paper, pamplets, radio,
television or cinema. conversation between two persons cannot be treated as publication.
To decide criminal contempt, the absence of criminal intention on the part of the person who has
published the matter containing criminal contempt or done the act of contempt will not be taken into account.
In E.M.S.Nambothribad v.T.N.Mambiar (AIR 1970 SC 2015) the then Chief Minister of Kerala,
Mr.Nambothribad in a press meet expressed the following about judiciary. judiciary is responsible for the
suppression of people. Judges are favouring some class of people and working against the other classes.
Judiciary is acting against the interest of working class and the agriculturist. judiciary is helping the
oppressor group. The supreme court held that the act of Mr. Nambothribad amounts to criminal contempt.
Making complaint against a Judge about his misconduct with sufficient evidence to the higher
authorities is not a contempt. But, the same complaint is published in any manner then it amounts to
contempt.
Preventing the court Amin from executing the court order, Threatening an Advocate not to appear in
a particular case, Threatening the witness, Preventing the witnesses from attending the courts, Preventing the
Commissioner from performing his duties are treated as criminal contempt.(see D.C. Saxina v. Chief Justice
of India at P 67).
Punishment: Punishment for the criminal contempt is same like civil contempt.(see p 36)
Punishment for contempt
S.12 Prescribes the punishment for contempt of court. punishment is same for the civil as well as the
criminal contempt. If the charge of contempt of court is proved, the Court shall award any one of the
following punishment.
1.Simple imprisonment for a term which may extend to 6 months.
2.Fine which may extend to Rs.2000/-.
3.Both the punishments ie., imprisonment and fine together.
According to S.12(2),For contempt of court any one of the above mentioned punishment alone can
be given and not any other punishment alone can be given and not any other punishment. But, in Delhi
Judicial Services Association v. State of Gujarat (AIR 1991 SC 2176)the Supreme Court held punishment
not mentioned in S.12 can also be given for contempt of court.
In Re Vinay Chandra Mishra (AIR 1995 SC2348)the supreme court held that for contempt of court
committed by an Advocate, he shall be suspended from practice for a fixed period or he shall be permanently
restrained from practice.
The Supreme Court Bar Association has filed a review petition against this order. In which the
supreme court held that for contempt of court the court cannot cancel the Advocates right to practice. But, he
shall be suspended from practice for a fixed period.
For the civil contempt, normally fine alone will be imposed. If the court thinks that fine alone is not
a sufficient punishment then he shall be put in the civil prison instead of ordinary imprisonment.
If the contempt of court is committed by a company in collusion of the Directors, Secretary and
other Managerical staff then shall be detained in the civil prison.
If the contempt is committed by a firm then the punishment shall be enforced against the partners of
the firm.
Defences in Criminal Contempt
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Or
S.3 to 7 deals with the defences avilable in Criminal Contempt. They are as follows:
1.Innocent Publication(S.3):A person shall not be guilty of contempt of court if he had made any
innocent publication of any matter pending before a court without knowing that the mater is pending a court.
The person charge with contempt must prove that publication is made without knowing that the Matter is
pending in the court.
2.Publication Relating to a Decided Case (S.3(2)):Publication about the decided case is not a contempt
since the case is already decided by the court, the publication is not going to interfere with the disposal of the
case. that is why it is not treated as contempt.
3.Distribution of publication without knowing that it contains contempt of court Matter(S.3(3)): If a
person distributes and publication without knowing that it contains contempt of court matter then it cannot be
treated as contempt. If the publication does not contain the name and address of the Author, publisher and
printer then this defence cannot be used by the person distributing such publications.
4.Fair and Accurate Reporting of Judicial Proceedings(S.4): Fair and accurate reporting of judicial
proceedings is not a contempt. This is because we are following the principle of openness in the matter of
administration of justice.
The following reporting of judicial proceedings though it is fair and accurate it will be treated as
contempt of court.
1. Reporting of the proceedings against any law which is in force.
2. Reporting of the proceedings when the court has prohibited the reporting in the interest of the general
public.
3. Reporting of the proceedings conducted in the judges chamber in the interest of defence of public
order.
4. Reporting of information relating to secret process, discovery or invention which is an issue in the
case.
5. Fair Criticism of Judicial Act(S.5): A proper and fair comment on a decision is not a contempt of
court. Criticism is permitted to the extent where it does not interfere with the administration of justice. So, it
is open to any one to express fair, reasonable and legitimate criticism of a judicial decision.
6. Bonafide Complaint against the Presiding Officers of a subordinate court(S.6): A bonafide
complaint made in good faith against the presiding officer of a subordinate court to the higher authorities,
who have control over such subordinate court, is not a contempt.
7. No Substantial Interference with the Administration of Justice: It means an act which is technically a
contempt but such act does snot substantially interfere with the administration of justice. For such acts no
punishment is awarded.
Defences in the Civil Contempt
or
Following are some of the important defences available to a person charged with civil contempt.
1. Disobedience of the Order is Not Willful: If the disobedience of the order is accidental or which is
not willful then it’s a good defence in a civil contempt proceedings.
2. The Order Passed Without Jurisdiction: If the order passed by the court is without jurisdiction then
the disobedience or violation of such order cannot be treated as contempt of court.
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An order passed without jurisdiction is void, hence it won’t bind any person. The person charged with
contempt must prove that the court has no jurisdiction to pass such order.
3. Order Disobeyed is Vague or Ambiguous: An order is treated as vague if it is not clear, specific and
complete. For violation of such order contempt proceedings cannot be taken.
4. Order Involves More than One Reasonable Interpretation: If the order of the court involves more
than reasonable interpretation, and one interpretation is adopted by the party and acted in accordance
with such interpretation then he cannot be held liable for contempt of court for not following the order
interpretation.
5. Compliance with the Order is Impossible: Impossibility means that the implementation of the order
is practically not possible .impossible is different from mere difficulty. Mere difficulty is not a defence.
The person charged with contempt must prove the impossibility of compliance with the order.
In Amar Singh v.K.P Geatha Krishnan(1993,I SCR 465)the court has passed on order to give some
benefits to the retired employees. This order was not implemented. In the contempt proceeding it was argued
that the implementation of the order involves huge expenditure hence compliance with the order is
impossible. The court has not accepted this defence.
6.No Knowledge of the Order: A person cannot be held liable for civil contempt, if he has no
knowledge about the order. If he has knowledge about the order, through it is not officially communicated to
him, then he cannot put this defence for violation of the order.
Contempt against Subordinate Court
The Contempt of court Act, 1971 confers power only to the Supreme Court and High Courts to try the
contempt of court and award suitable punishment.
Contempt of court against the subordinate courts shall be tried by the High court. The concerned
subordinate court or the Advocate General of the state shall file the petition before the High court. In the
Union Territories, the officer authorized in this behalf shall file the petition.
A contempt which comes within the definition of S.228 of I.P.C. shall be tried and punished by the
subordinate courts.
S.228: When judicial proceedings are going on, a person causing disturbance to the proceedings and
thereby shows disrespect to the court shall be punished with simple imprisonment for a term which may
extend to 6 months or with a fine which may extend to Rs.1000/-or with both.
In the trial of such cases the court shall follow the procedure laid down in S.345 & 346 of Criminal
procedure Code. This section deals with summary procedure. So the court shall follow summary procedure
and no detailed enquiry is needed.
Contempt Procedure in the Supreme
The Contempt of the court Act confers the following two types of powers to the supreme court and the
High courts with regard to contempt of court.
1. Power to punish a person who has committed contempt of court inside the court(S.14).
2. Power to punish a person who has committed contempt of court outside the court(S.15).
1. Contempt of Court Inside the Court: When judicial proceedings are going on, if it appears to the
court that a person is guilty of contempt of court in their presence then the court shall take the following
actions.
(i) Pass an order to arrest the person.
(ii) Give a notice in writing immediately regarding the charges against him.
(iii) Offered him opportunity to make his defence to the charge.
(iv) Take such evidence as may be necessary or as may be offered by such person and hear him.
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During the trial, if the person charged with contempt applies either orally or in writing, for a trial by
some other judge other than the judge in whose presence the alleged contempt is committed then the request
along with the statement of facts of the alleged contempt shall be placed before the Chief Justice shall be
taken as evidence.
If the case is transferred to some other Judge then the judge in whose presence the alleged contempt was
committed need not appear as witness. The facts submitted by him to the Chief Justice shall be taken as
evidence.
During the pendency of the proceedings, the person charged with contempt shall be detained in such
custody as the court may specify. He may be released on bail with or without sureties or on a self bond as the
court thinks fit.
In Sugdev Singh v. Deeja Singh(AIR 1954 SC 186)the supreme court has advised that to the extent
possible, the judge in whose presence the alleged contempt was committed, must avoid to conduct the trial by
himself.
2.Contempt of Court Outside the Court: The supreme court or the High Court shall take action for
contempt of court committed outside the court in the following situations.
(i) On its own motion.
(ii) On a petition made by the Advocate General(in relation to the High Court)( or the Attorney General or
the solicitor General(in relation to the Supreme Court).
(iii) On a petition by any other person(if consent is given in writing to file such petition by the Advocate
General or Attorney General or Solicitor General as the case may be).
A person cannot file a contempt of court petition without the consent of the Advocate General or the
Attorney General or the Solicitor General. After Admitting a petition the court shall follow the following
procedure.
1. Notice shall be sent to the person charged with contempt.
2. Person charged with contempt shall be allowed to submit his defence in an affidavit.
3. The trial shall be conducted by persuing the defences submitted by him or taking such other evidences
as may be necessary.
4. The trial shall be conducted by a bench consisting of two judges.
5. If the court feels that the person charged with contempt may abscond then his properties shall be
attached.
Limitation: The limitation period for filing a petition for contempt of court is one year. After one year
even the court cannot take action on its own motion(s.20).
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