Vakalatnama - A vakalatnama is only a document which authorizes
an advocate to appear on behalf of the party and by and large, it has no bearing
on the merits of the case.
The Indian Penal Code, 1860 - Sections 193, 466, 468 and 471 -
Even assuming that the version in the vakalatnama is wrong, mere incorrect
statement in the vakalatnama would not amount to create a forged document and
it cannot be the reason for exercising the jurisdiction under Section 340
Cr.P.C. for issuance of direction to lodge the criminal complaint.
There is no prima facie evidence to
show that the appellants had intended to cause damage or injury or any other
acts. Since the disputed version in the vakalatnama appears to be an
inadvertent mistake with no intention to make misrepresentation, the direction
of the High Court to lodge a criminal complaint against the appellants cannot
be sustained and the same is liable to be set aside.
IN THE SUPREME COURT OF
INDIA
CRIMINAL APPELLATE
JURISDICTION
[R. BANUMATHI] AND [S.
ABDUL NAZEER] JJ.
May 07, 2019
CRIMINAL APPEAL NO.855
OF 2019
(Arising out of SLP
(Crl.) No.7252 OF 2016)
SASIKALA PUSHPA AND
OTHERS ...Appellants
VERSUS
STATE OF TAMIL NADU
...Respondent
With CRIMINAL APPEAL NO.856 OF 2019 (Arising out of SLP (Crl.)
No.7287 OF 2016) CRIMINAL APPEAL NO.857 OF 2019 (Arising out of SLP (Crl.)
No.8206 OF 2016) CRIMINAL APPEAL NO.858 OF 2019 (Arising out of SLP (Crl.)
No.9064 OF 2016) CRIMINAL APPEAL NO. 859 OF 2019 (Arising out of SLP (Crl.)
No.9065 OF 2016)
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. These appeals [SLP(Crl.) Nos.7252, 7287 and 8206 of 2016] arise
out of the judgment dated 14.09.2016 passed by the Madurai Bench of Madras High
Court dismissing anticipatory bailapplication in Crl. OP(MD) No.15370 of 2016
filed by the appellants. By the same judgment, the learned Single Judge of the
High Court directed the Registrar (Judicial) to lodge a complaint with the
jurisdictional police station against the appellants with respect to the
alleged forgery committed by them in signing the vakalatnama. Pursuant to the
direction of the High Court, the Registrar (Judicial) lodged a complaint with
K. Pudur Police Station, Madurai on 19.09.2016, on the basis of which, FIR in
Crime No.1331/2016 for the offences punishable under Sections 193, 466, 468 and
471 IPC was registered against the appellants.
3. The first appellant was the then Member of Rajya Sabha and
expelled Member of AIADMK Political Party. The third appellant is the husband
of the first appellant. A complaint was filed by one Banumathi who was then
working as maid in the house of the appellants in the year 2011 alleging that
she was sexually harassed while she was working in the house of the appellants.
Based on the said complaint, a criminal case was registered against all the
appellants in Crime No.5/2016 in All Women’s Police Station under Sections
294(b), 323, 344, 354(A) and 506(i) IPC and under Section 4 of the Tamil Nadu
Prohibitionof Harassment of Women Act, 2002. The first appellant denied all the
allegations and claimed that the same was result of political vendetta against
her.
4. The appellants filed bail application under Section 438 Cr.P.C.
in Crl.OP(MD) No.15370 of 2016 against the said offences before the Madurai
Bench of Madras High Court along with vakalatnama bearing the signature of
appellants No.1 and 3 dated 18.08.2016. The first appellant left for Singapore
from New Delhi on 17.08.2016. While filing bail application in Crl.OP(MD) No.15370
of 2016, the appellants filed vakalatnama wherein it was stated that the said
vakalatnama was signed by the appellants before Advocate Mr. Vijaykumar on
17.08.2016 at Madurai. Challenging the maintainability of the bail petition and
the vakalatnama, the respondent-State filed preliminary objections and
submitted that appellant No.1 had left for Singapore from New Delhi on
17.08.2016 at 23.15 hours. Similarly, appellant No.3 had left for Singapore
from Bengaluru on 18.08.2016 at 09.30 AM. It was alleged that the appellants
filed anticipatory bail application on 18.08.2016 as if they were present in
Madurai on 17.08.2016 and signed the affidavit and vakalatnama in the presence
of an advocate at Madurai. TheHigh Court vide order dated 23.08.2016 directed
the appellants to appear before the court on 29.08.2016 and to give their explanation
with regard to the said preliminary objection. Accordingly, the appellants
appeared before the court on the said date and submitted their affidavit before
the High Court stating that the date mentioned in the vakalatnama was an
inadvertent mistake.
5. In the impugned judgment, the High Court held that the explanations
given by the appellants are not satisfactory and the same is contradictory to
the written version as contained in the vakalatnama. Referring to the affidavit
filed by the appellants, the High Court pointed out that appellant No.1 has
given explanation that she never came to Madurai for signing the vakalatnama
and that she had never signed the vakalatnama in the presence of advocate Mr.
Vijaykumar at Madurai. The learned Single Judge therefore held that prima
facie, it appears that the document has been forged and the same has been
signed and executed outside Madurai and produced before this court as though,
it has been signed and executed at Madurai and the same has been utilized and
filed before the High Court. On the above findings, the High Court directed the
Registrar (Judicial) to lodge the complaintagainst the appellants with the
jurisdictional police station. Pursuant to the direction of the High Court, the
Registrar (Judicial) lodged a complaint with K. Pudur Police Station, Madurai
on 19.09.2016. Based on the complaint lodged by the Registrar (Judicial) of the
High Court, FIR in Crime No.1331/2016 was registered with K. Pudur Police
Station, Madurai on 19.09.2016 for the offences punishable under Sections 193,
466, 468 and 471 IPC.
6. Being aggrieved, the appellants have filed these appeals. By the
order dated 26.09.2016, the Supreme Court directed that no coercive action be
taken against the appellants in Crime No.1331/2016 and also in Crime No.5/2016
and granted interim protection to the appellants from arrest.
7. It has been urged by Mr. Sanjay Hegde, learned senior counsel
appearing for the appellants that the High Court erred in not considering the
fact that the vakalatnama contains the signature of the appellants and that the
date thereon is a purely clerical error. It was submitted that the High Court
has not recorded a finding to the effect that it is ‘expedient in the interest of
justice’ to lodge a complaint against the appellants and the High Court erred
in issuing directions to lodge the complaint tothe police for registering
criminal case against the appellants. Further, it was contended that the High
Court also erred in law in treating the vakalatnama filed by the appellants as
the main reason for dismissing the anticipatory bail application.
8. Mr. Yogesh Kanna, learned counsel appearing for the State of
Tamil Nadu submitted that the High Court has categorically found that the first
appellant has not signed the vakalatnama in Madurai on 18.08.2016 and
therefore, the appellants have committed fraud upon the court and the High
Court rightly issued directions to the Registrar for lodging complaint against
the appellants. The learned counsel further submitted that the first appellant
being the then Member of Parliament and her husbandthe third appellant being a
businessman and influential person are not cooperating with the investigation
and the first appellant has given evasive reply to the questions raised by the Investigation
Officer. It was submitted that no grounds are made out for setting aside the directions
issued by the High Court and for quashing of the FIR No.1331/2016 registered on
the directions of the High Court. The learned counsel placed reliance upon Sachida Nand Singh
and another v. State of Bihar and another (1998) 2 SCC 493.
9. We have carefully considered the submissions and perused the
impugned judgment and other materials placed on record. The point falling for
consideration is whether in the facts and circumstances of the case, the court
was right in issuing directions to lodge the complaint against the appellants
before the concerned police station for forgery and for creation of forged document.
10. It is fairly well settled that before lodging of the complaint,
it is necessary that the court must be satisfied that it was expedient in the
interest of justice to lodge the complaint. It is not necessary that the court
must use the actual words of Section 340 Cr.P.C.; but the court should record a
finding indicating its satisfaction that it is expedient in the interest of
justice that an enquiry should be made. Observing that under Section 340 Cr.P.C.,
the prosecution is to be launched only if it is expedient in the interest of
justice and not on mere allegations or to vindicate personal vendetta, In Iqbal Singh Marwah v.
Meenakshi Marwah (2005) 4 SCC 370, this Court held as under:-
“23. In
view of the language used in Section 340 CrPC the court is not bound to make a
complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words “court
is of opinion that it is expedient in the interests ofjustice”. This shows that
such a course will be adopted only if the interest of justice requires and not
in every case. Before filing of the complaint, the court may hold a preliminary
enquiry and record a finding to the effect that it is expedient in the
interests of justice that enquiry should be made into any of the offences
referred to in Section 195(1)(b).
This expediency will normally be judged by the court by weighing not the
magnitude of injury suffered by the person affected by such forgery or forged
document, but having regard to the effect or impact, such commission of offence
has upon administration of justice. It is possible that such forged document or
forgery may cause a very serious or substantial injury to a person in the sense
that it may deprive him of a very valuable property or status or the like, but
such document may be just a piece of evidence produced or given in evidence in
court, where voluminous evidence may have been adduced and the effect of such
piece of evidence on the broad concept of administration of justice may be
minimal. In such circumstances, the court may not consider it expedient in the
interest of justice to make a complaint. …...”
11. Before proceeding to make a complaint regarding commission of
an offence referred to in Section 195(1)(b) Cr.P.C., the court must satisfy
itself that “it is expedient in the interest of justice”. The language in
Section 340 Cr.P.C. shows that such a course will be adopted only if the
interest of justice requires and not in every case. It has to be seen in the
facts and circumstances of the present case whether any prima facie case is made out for forgery or making a forged
document warrantingissuance of directions for lodging the complaint under
Section 193, 467, 468 and 471 IPC.
12. Based on the complaint of one Banumathi for the alleged harassment,
a case in Crime No.5/2016 under Sections 294(b), 323, 344, 354-A and 506(i) IPC
and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002
was registered against the appellants. Appellant No.1 filed anticipatory bail application
No.1627/2016 before the High Court of Delhi. The High Court of Delhi vide order
dated 11.08.2016 granted interim protection to the appellants and directed the
appellants to avail the remedy before the court of competent jurisdiction in
the State of Tamil Nadu or the High Court of Madras. The High Court of Delhi
directed that no coercive action be taken against the appellants in FIR
No.5/2016 till 22.08.2016 subject to their joining the investigation as and
when directed by the Investigating Officer.
13. Pursuant to the order of the High Court of Delhi, the appellants
filed anticipatory bail application before the High Court of Madras at Madurai
Bench in Bail Application No.15370/2016 on 18.08.2016. In the said application,
preliminary objection was raised by the State alleging “that the appellants
have played fraudon the court by filing a vakalatnama signed by them on 17.08.2016
attested by an advocate from Madurai as if appellants No.1 and 3 were present
in Madurai on 17.08.2016 whereas appellant No.1 left for Singapore from New
Delhi on 17.08.2016”. The third appellant left for Singapore from Bengaluru on 18.08.2016.
Alleging that they have filed false vakalatnama, the respondent-State raised
objection for maintainability of the petition. In the meanwhile, on 22.08.2016,
the Investigating Officer included Section 9(I)(n) read with Section 10,
Section 16 read with Section 17 of Protection of Children from Sexual Offences
Act, 2012 in Crime No.5/2016.
14. The High Court rejected the anticipatory bail application and declined
to grant pre-arrest bail in Crime No.5/2016. The High Court held that the first
appellant never came to Madurai for signing the vakalatnama in the presence of
advocate Vijaykumar and therefore, prima facie it appears that the document has
been forged and the same has been signed and executed outside Madurai as though
it has been signed and executed at Madurai and the same has been utilized by
the appellants before the court. Placing reliance upon Sachida Nand Singh, the High Court observed that the act committed by
the appellants amount tofraud played upon the court and thus, directed the
Registrar (Judicial) to lodge a complaint against all the appellants who signed
the vakalatnama in Crl.O.P.(MD) No.15370/2016.
15. In the present appeals, we are mainly concerned with the findings
of the High Court that by filing the vakalatnama in Crl.O.P.(MD) No.15370/2016,
the appellants have played fraud upon the court and the issuance of the
direction to the Registrar (Judicial) to lodge the complaint against the
appellants for forgery. As pointed out earlier, the appellants have filed
Crl.O.P.(MD) No.15370/2016 on 18.08.2016 in which they have filed the vakalatnama
wherein it had been stated as under:-
“Executed before me this 17th day
of August, 2016. Before me, S. Vijaykumar, No.51 law Chambers, High Court
Madurai.”
The above version in the vakalatnama looks as if appellants No.1
and 3 have signed the vakalatnama in Madurai on 17.08.2016; but actually the
first appellant did not visit Madurai and left for Singapore from New Delhi on
17.08.2016 at 11.15 PM. It is pertinent to note that in the affidavit filed by
the appellants before the High Court on 29.08.2016, the first appellant has
taken the plea that there has been a clerical error. Appellant No.1 has stated
that on 16.08.2016, she and her son-appellant No.2 signedthe vakalatnama in New
Delhi and that the same was signed through appellant No.3 who was in Bengaluru.
It is stated that after receiving the vakalatnama, appellant No.3 reached
Madurai on the same day evening by road and handed over it to the lawyer and
returned back to Bengaluru by road on the same day and thereafter, appellant
No.3 left for Singapore in the morning of 18.08.2016 at 09.30 AM. According to
the appellants, when the vakalatnama was filed in the High Court of Madras at
Madurai Bench, it was mistakenly recorded that it has been signed on 18.08.2016
in Madurai. The explanation given by the appellants appears to be plausible and
we find no reason to disbelieve the same and their affidavit dated 29.08.2016.
16. A vakalatnama is only a document which authorizes an advocate to
appear on behalf of the party and by and large, it has no bearing on the merits
of the case. We find force in the contention of the learned senior counsel for
the appellants that there is no reason as to why a party would deliberately
furnish a false date and place in the vakalatnama. Appellant No.1 left for Singapore
from New Delhi on the night of 17.08.2016 and appellant No.3 left for Singapore
from Bengaluru on the morning of 18.08.2016 at 09.30 AM which fact admitted by
both theparties. In the affidavit filed before the High Court, the first appellant
clearly stated that she and her son appellant No.2 signed the vakalatnama on
16.08.2016 and the same was sent to her husband-appellant No.3 who was in
Bengaluru who in turn handed over the same to the advocate at Madurai. The appellants
have admitted their signatures in the vakalatnama. The sequence of events as
stated in the affidavit of the appellants, in our view, do not make out a case
of forgery. The High Court has not recorded any finding as to why it rejected
the plea of the appellants made in the affidavit which has also been reiterated
by them in their explanation before the court when they personally appeared
before the court.
17. Mr. Yogesh Kanna, the learned counsel appearing for the State of
Tamil Nadu placed reliance upon Sachida Nand Singh and submitted that even if any offence involving forgery of document
is committed outside the precincts of the court and long before its production
in the court, the same would also be treated as one affecting the
administration of justice. After referring to various judgments, in Sachida Nand Singh, it was held as under:-
“11. The scope of the preliminary enquiry envisaged in
Section 340(1) of the Code is to ascertain whether any offence affecting administration
of justice has been committed in respect of a documentproduced in court or
given in evidence in a proceeding in that Court. In other words, the offence
should have been committed during the time when the document was in custodia legis.
12. It would be a strained thinking that any offence
involving forgery of a document if committed far outside the precincts of the
Court and long before its production in the Court, could also be treated as one
affecting administration of justice merely because that document later reached
the court records.”
18. There could be no two views about the proposition that even if
forgery is committed outside the precincts of the court and long before its
production in the court, it would also be treated as one affecting the
administration of justice. But in the present case, the vakalatnama filed by the
appellants in Crl.O.P.(MD) No.15370/2016 seeking anticipatory bail in Crime
No.5/2016 cannot be said to be a forged document. As pointed out earlier, the
appellants have admitted their signatures in the vakalatnama. They only allege
that it was mistakenly recorded that it has been signed on 18.08.2016 at
Madurai in the presence of the advocate. Of course, the version in the
vakalatnama is an incorrect statement. In our opinion, the High Court was not
justified in terming the said mistake or error as fraud. Fraud implies intentionally
deception aimed or achieving some wrongful gain or causing wrongful loss or
injury to another. Intention being themens rea is
the essential ingredient to hold that a fraud has been played upon the court.
The learned counsel for the State has submitted that upon examination of the
signature in the vakalatnama, the hand-writing expert has opined that it is not
the signature of the appellants and therefore, the intention of the appellants to
create a forged document has been clearly made out. We do not find any merit in
the submission as the appellants themselves admitted their signatures in the
vakalatnama. In the light of the statement of the appellants admitting their
signatures in the vakalatnama, we do not think that the opinion of the
handwriting expert would stand on any higher footing. There is nothing on
record to suggest that the appellants gained anything by playing fraud or
practising deception. In the absence of any material to substantiate the
allegations, in our view, the High Court was not justified in accusing the
appellants fraud.
19. Even assuming that the version in the vakalatnama is wrong, mere
incorrect statement in the vakalatnama would not amount to create a forged
document and it cannot be the reason for exercising the jurisdiction under
Section 340 Cr.P.C. for issuance of direction to lodge the criminal complaint
against the appellants.
20. In Amarsang Nathaji v. Hardik Harshadbhai Patel (2017) 1 SCC 117, this Court held that before proceeding under
Section 340 Cr.P.C., the court has to be satisfied about the deliberate falsehood
on a matter of substance and there must be a reasonable foundation for the
charge. Observing that some inaccuracy in the statement or mere false statement
may not invite a prosecution, it was held as under:-
“6.
The mere fact that a person has made a contradictory statement in a judicial
proceeding is not by itself always sufficient to justify a prosecution under
Sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred
to as “IPC”); but it must be shown that the defendant has intentionally given a
false statement at any stage of the judicial proceedings or fabricated false
evidence for the purpose of using the same at any stage of the judicial
proceedings. Even after the above position has emerged also, still the court
has to form an opinion that it is expedient in the interests of justice to
initiate an inquiry into the offences of false evidence and offences against public
justice and more specifically referred to in Section 340(1) CrPC, having regard
to the overall factual matrix as well as the probable consequences of such a
prosecution. (See K.T.M.S. Mohd. v. Union of India (1992) 3 SCC 178). The court must be satisfied that such an
inquiry is required in the interests of justice and appropriate in the facts of
the case.”
The same view was quoted with approval in Chintamani Malviya v.
High Court of M.P. (2018) 6 SCC 15.
21. Applying the ratio of the above decisions, in our view, there is
no prima facie evidence to show that the appellants had intended
to cause damage or injury or any other acts. Since the disputed version in the
vakalatnama appears to be an inadvertent mistake with no intention to make
misrepresentation, in our view, the direction of the High Court to lodge a
criminal complaint against the appellants cannot be sustained and the same is
liable to be set aside.
22. The learned counsel for the State submitted that in Crime No.1331/2016,
criminal case was registered based on the direction of the High Court and upon
completion of the investigation, charge sheet has also been filed. As held in Pepsi Foods Limited
and another v. Special Judge Magistrate and others (1998) 5 SCC 749, summoning of an accused in a criminal case is a
serious thing; more so to face a trial in criminal case registered with the
direction of the High Court. Since the appellants themselves have admitted
their signatures in the vakalatnama and the version in the vakalatnama that
they have signed at Madurai on 18.08.2016 is an advertent mistake, in our view,
even if the trial proceeds, there may not be any possibility ofthe appellants
being convicted for the alleged offences of forgery and for making forged
document.
23. In Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS
and Another (2006) 7 SCC 188, it was held as under:-
“7. Exercise
of power under Section 482 of the Code in a case of this nature is the
exception and not the rule. The section does not confer any new powers on the
High Court. It only saves the inherent power which the Court possessed before
the enactment of the Code. It envisages three circumstances under which the
inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is
neither possible nor desirable to lay down any inflexible rule which would
govern the exercise of inherent jurisdiction. …….. In exercise of the powers
the court would be justified to quash any proceeding if it finds that initiation/continuance
of it amounts to abuse of the process of court or quashing of these proceedings
would otherwise serve the ends of justice. When no offence is disclosed by the
complaint, the court may examine the question of fact. When a complaint is
sought to be quashed, it is permissible to look into the materials to assess
what the complainant has alleged and whether any offence is made out even if the
allegations are accepted in toto.”
24. In the facts and circumstances of the present case, in our view,
no useful purpose would be served by proceeding with the criminal prosecution
against the appellants. Without further going into the merits of the case, we
quash the FIR in CrimeNo.1331/2016 and also quash the charge sheet pending
before the concerned Magistrate. The FIR and the charge sheet are quashed only
in the facts and circumstances of the present case and to meet the ends of
justice. It is made clear that taking advantage of quashing of the case, the
appellants shall not resort to any further consequential proceedings.
25. Crime No.5/2016:- In the impugned order, the High Court has declined to grant
anticipatory bail to the appellants. The Supreme Court vide order dated
26.09.2016 granted interim protection to the appellants in Crime No.5/2016
registered in All Women’s Police Station, Pudukkottai, Tuticorin district. The learned
senior counsel appearing for the appellants submitted that the appellants have
compromised the matter with the victim Banumathi and that based on the
compromise, they have already filed quash petition before the High Court of
Madras in which the High Court has directed the parties to approach the
concerned police station. We are not inclined to go into the merits of the said
matter, except to extend interim protection granted to the appellants in Crime
No.5/2016 till the disposal of the said case.
26. Crime No.276/2016:- On 11.10.2016, the appellants along with other accused are said
to have caused damage to thehousehold articles and car of one Suganthi who was
the advocate for the victim-Banumathi in Crime No.5/2016. Based on the complaint
lodged by one Muthu-a relative of the said Suganthi, a criminal case was
registered against the appellants under Sections 147, 148, 448, 506(II) IPC and
under Section 3 of the Tamil Nadu Public Property (Prevention of Damage and
Loss Act, 1992) in Crime No.276/2016 of Thisayanvilai Police Station, Tirunelveli.
The appellants have filed the anticipatory bail application before the High
Court and by order dated 18.11.2016, the High Court granted anticipatory bail
to appellants No.2 and 3 and the learned Single Judge took the view that
custodial interrogation of appellant No.1 is required and declined to grant anticipatory
bail to appellant No.1. The order dated 18.11.2016 is the subject matter of
challenge in SLP(Crl.) Nos.9064/2016 and 9065/2016. When the matter came up for
admission before this Court, vide order
dated 22.11.2016, this Court has granted interim protection to appellant No.1.
Therefore, case against the appellants was registered under Sections 147, 148,
448, 506(ii) IPC and Section 3 of Tamil Nadu Public Property (Prevention of Damage
and Loss Act, 1992) in Crime No.276/2016 (Thisayanvilai, Thirunelveli). The
High Court declined anticipatorybail to the first appellant by holding that her
custodial interrogation is necessary whereas appellants No.2 and 3 were granted
anticipatory bail.
27. In the result, all the appeals are disposed of as under:- SLP(Crl.)
No.7252/2016:- The
impugned order of the High Court issuing direction to lodge criminal complaint
against the appellants is set aside and the appeal is allowed. Considering the
facts and circumstances of the case, the FIR in Crime No.1331/2016 (K. Pudur
Police Station) and the charge sheet filed thereon are quashed and the appeal
is allowed accordingly. As pointed out in para No.(23), taking advantage of the
quashing of the FIR in Crime No.1331 of 2016, the appellants shall not resort
to any further or consequential proceedings.
28. SLP(Crl.) Nos.7287/2016 and 8206/2016:- The interim protection granted to the appellants
in Crime No.5/2016 (AWPS, Pudukkottai, Tuticorin District) is extended till the
disposal of the criminal case arising out of Crime No.5/2016.
29. SLP(Crl.) Nos.9064/2016 and 9065/2016:- The interim protection granted to the appellants
by the order dated 22.11.2016 in Crime No.276/2016 (Thisayanvilai Police
Station,Thirunelveli) is extended till the disposal of the criminal case arising
out of Crime No.276/2016. The appellants are granted anticipatory bail in Crime
No.276/2016 which shall hold good till the disposal of the criminal case. So
far as quashing of criminal case in Crime No.276/2016, the appellants are at
liberty to approach the High Court and the High Court shall consider the same
on its own merits.
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