Sreenivasan v. District Magistrate Ernakulam — 1973 DIGILAW 296 (KER)

JUDGMENT V. Balakrishna Eradi, J. 1. Instances of patent, and arbitrary misuse of powers by judicial officers have been happily very rare in the annals of the administration of justice in our country but here, unfortunately, is an extraordinary case of that type where an advocate appearing for the accused in two criminal cases pending before the District Magistrate, Ernakulam, has been driven to the necessity of approaching this court under section 561A of the Criminal Procedure Code for preventing, a gross abuse by the District Magistrate of the process of his court. 2. One Kamalasanan is the accused in C.C. Nos. 216 and 217 of 1973 pending before the District Magistrate. On 14th August 1973 the District Magistrate released the accused on bail on his executing a bond for Rs. 1,000, with two sureties for like amount, for the regular appearance of the accused on all hearing dates. One of the sureties is a person by name Thankappan Nair whose description as given in the bail bond is "son of Parameswaran Pillai, Businessman, Thampanoor, Trivandrum". The affidavits filed before the District Magistrate by the said Thankappan Nair while executing the surety bonds in the two cases had been attested by the petitioner , by endorsing that the deponent of the affidavits who is personally known to the petitioner had solemnly affirmed and signed the affidavits in the petitioner presence at Ernakulam on the 14th August, 1973. 3. C.C. Nos. 216 and 217 of 1973 stood posted to 4th October 1973 for questioning the accused under section 342 of the Criminal Procedure Code. When the case was called on that day the accused was absent. The petitioner who is the advocate appearing for the accused was present in court when the cases were called on that day. He represented to the court that he had no information from the accused but was expecting that the accused who had to come from Trivandrum would be reaching the court in time. The District Magistrate thereupon cancelled the bail bonds and issued notices to the surety under section 514 of the Criminal Procedure Code directing him to show cause before 16th October 1973 why the provisions of the surety bonds providing for forfeiture of the sum of Rs. 1,000 should not be enforced. The District Magistrate thereupon cancelled the bail bonds and issued notices to the surety under section 514 of the Criminal Procedure Code directing him to show cause before 16th October 1973 why the provisions of the surety bonds providing for forfeiture of the sum of Rs. 1,000 should not be enforced. The above notices issued to the surety Thankappan Nair were returned unserved by the Sub Inspector of Police, Thampanoor, Trivandrum, and thereupon on the 17th October, 1973, the District Magistrate issued a non-bailable warrant for the arrest of the said surety. 4. On the very next day viz. the 18th October, 1973, the District Magistrate issued a notice to Sri A. K. Sreenivasan, Advocate, the petitioner herein, summoning the petitioner to appear before him at 11 a.m. on 3rd November 1973 in connection with M.G. Nos. 106 and 107 of 1973 posted to that date. The notice reads thus: Malayalam (By order) (Sd.) Sheristadar. The two miscellaneous cases referred to in the notice are proceedings initiated against the surety Thankappan Nair under section 514 of the Criminal Procedure Code. The petitioner had not filed any vakalath or memo of appearance on behalf of Thankappan Nair in those cases. Further, even if it was wrongly thought by the court that he was appearing as advocate for the said surety there was no reason at all why the court should issue to him such a notice commanding him to appear in connection with the cases on any particular day. Hence, the petitioner was, quite naturally, taken aback on receiving such a notice from the District Magistrate. It is submitted by the petitioner that the action of the District Magistrate in issuing such a notice to him is totally illegal and unwarranted by any provision of law. It is also alleged by him that the impugned notice has been issued to him by the District Magistrate purposely to humiliate the petitioner in reprisal for his having participated in a meeting of the Ernakulam Bar Association held on 21st July 1973 at which a resolution strongly protesting against the treatment meted out to the Bar by the District Magistrate, is said to have been moved and adopted. The petitioner has, therefore, moved this court under section 561A of the Criminal Procedure Code challenging the legality of the action of the District Magistrate in issuing the aforesaid notice to the petitioner and praying that the said notice should be quashed on the ground that it constitute an abuse of the process of court. 5. When this petition was moved before me on the 2nd November 1973, while admitting the case and granting an interim stay of all further proceedings by the Magistrate pursuant to the notice issued to the petitioner, I considered it necessary to call for a report from the District Magistrate regarding the allegations contained in the petition and particularly as to under what provision of law and in what circumstances he had thought it fit to issue the notice in question to the petitioner advocate. Accordingly, an order was passed on that day directing the District Magistrate to submit a report to this court by 5th November 1973. In compliance with the said order the District Magistrate has sent up a detailed report dated the 3rd November 1973. After referring to the preliminary facts relating to the grant of bail to Kamalasanan, the accused in C.C. Nos. 216 and 217 of 1973 and his absence when the cases were called on 4th September 1973 the District Magistrate has given the following narration of the circumstances which led him to issue the impugned notice to the petitioner: "When notice was sent to the surety Thankappan Nair whose address is given as, businessman, Thampanoor, Trivandrum, it was reported by the Police that there is no such person, as far as they could gather, from the detailed enquiries made and therefore notice could not be served. In the affidavits filed by Sri Thankappan Nair in these two cases when he offered himself as surety the signatures of the deponent were attested by Sri A. K. Sreenivasan, Advocate, stating "Solemnly affirmed at Ernakulam on this the 14th day of August 1973 and signed before me who is personally known to me. From the report of the Police, Trivandrum it appeared that this might be a case of false personation. It is seen that in several cases the accused have been got released by false sureties. I have already submitted a report about this to the Honble High Court as per my letter dated 31st October 1973 in M.C. 1/1973. From the report of the Police, Trivandrum it appeared that this might be a case of false personation. It is seen that in several cases the accused have been got released by false sureties. I have already submitted a report about this to the Honble High Court as per my letter dated 31st October 1973 in M.C. 1/1973. In that case, the report was that the person who is alleged to have executed the bond had died from the Medical College Hospital, Kottayam, even prior to the date of the bond. In C.C. 304/1973 when the accused absconded, notice was issued to the sureties and one surety filed a statement stating that he had not stood surety or executed any bond. The advocate who moved for bail who was requested to be present appeared and stated that the persons who appeared as surety, was not the person, to the best of his knowledge, who appeared as surety and executed the bond. In M.C. 112/1973 the second party Bavo appeared and filed a statement that he did not executed the bond. The advocate for the accused who was present in court, immediately ascertained from the accused about the person who appeared as surety and executed the bond and it was stated that the son of the surety had falsely personated and appeared and executed the bond in the name of his father. There are several other similar instances of false personation and filing false affidavits pending enquiry before this court. Under the circumstances in this case also it appeared to the court that a false affidavit has been filed by false personation. If it is false personation, the attestation by the advocate should necessarily be false. The offences under sections 193, 196, 197, 199 and 205 of the Indian Penal Code appears to have been committed. Under the circumstances in this case also it appeared to the court that a false affidavit has been filed by false personation. If it is false personation, the attestation by the advocate should necessarily be false. The offences under sections 193, 196, 197, 199 and 205 of the Indian Penal Code appears to have been committed. These are some of the offences mentioned in section 195 Cr.P.C. Under section 496 of the Cr.P.C. when any Civil, Revenue or Criminal court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in section 195, sub-section (1), Cl (b) or Cl (c), which appears to have been committed in or in relation to a proceedings in that court, such court may, after such preliminary inquiry if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court..... To ascertain whether there is a person as described in the affidavits filed in the name of Sri Thankappan Nair notice was issued as part of the preliminary enquiry contemplated under section 476 Cr. P.C. to Sri A. K. Sreenivasan who has attested the affidavits of the said Thankappan Nair stating that the deponent is personally known to him. This had to be done in view of the report of the Police. Notice to Sri A. K. Sreenivasan was issued to appear in court on 3rd November 1973 not in his capacity as advocate appearing for the accused but as the person who has attested the affidavit of the said party stating that he personally knows the surety. The court can make the preliminary enquiry mentioned above, either through the Police or to the accused or to the other surety or to the person who attested the affidavit. In this matter accused is absconding the other surety could not be served and the Police report is as stated above. So the only person to whom the inquiry under section 476 could be made in the circumstances is the person who has attested the affidavit"�. In this matter accused is absconding the other surety could not be served and the Police report is as stated above. So the only person to whom the inquiry under section 476 could be made in the circumstances is the person who has attested the affidavit"�. On going through the report of the District Magistrate I felt it necessary to call for the originals of the two notices issued under section 514 of the Criminal Procedure Code to the surety Thankappan Nair containing the endorsement or report of the Police as to the reason why the notices were returned unserved, since it was the said endorsement or report of the Police that had been repeatedly referred to in the Magistrate report as constituting the sole foundation for the action taken by him against the petitioner. What has been stated by the District Magistrate in the report submitted to this court is that the notice sent to the surety Thankappan Nair was returned unserved by the Police with a report that "there is no such person, as far as they could gather, from the detailed enquiries made"� and that hence it appeared to him (District Magistrate) that the accused had been got released "by false sureties by false personation and filing false affidavit."� It is further stated by the District Magistrate that since there was reason to think that the affidavit filed by the surety was false, the advocate, who attested the said affidavit, is also prima facie liable to be proceeded against for offences under sections 193, 196, 197, 199 and 205 of the Indian Penal Code and these being offences mentioned in section 195 of the Criminal Procedure Code he considered it necessary to initiate a preliminary enquiry under section 476 of the Criminal Procedure Code and that the notice to the petitioner advocate was issued as part of the said preliminary enquiry. 6. For the reasons to be presently indicated by me it is really unnecessary for this court to consider in the, present case as to whether an advocate, who had merely attested the affidavit filed by a surety, is liable to be proceeded against in law under sections 195 and 476 of the Criminal Procedure Code even if there are valid grounds to think that the affidavit filed by the surety was prima facie false. The originals of the two notices issued to Thankappan Nair under section 514 of the Criminal Procedure Code containing the report of the police as to the reason for non-service have been got down to this court. On perusing the endorsements of the police contained in those two notices, which are almost identically worded, it is seen that their contents are very materially different from what has been mentioned by the District Magistrate in the report submitted by him to this court. What the police have reported is that for want of more detailed particulars regarding the nature of the business conducted at Thampanoor by the person referred to in the notice, the police constable who was deputed to serve the notice was unable to contact the person named in the notice and effect service on him. The endorsement dated 12th October 1973 which is in Malayalam is in the following terms: Malayalam I cannot help remarking that the information furnished to this court by the District Magistrate in his report dated 3rd November 1973 regarding the contents of the police report is grossly inaccurate and misleading. The District Magistrate has stated in his report that when notice was sent to the surety Thankappan Nair it was reported by the police that there is no such person as described in the notice and that hence it appeared to the District Magistrate prima facie that there had been a false personation. As a matter of fact, the police had only reported that for want of further particulars regarding the nature of the business conducted at Thampanoor by the person named in the notice, it had not been possible for them to effect service. In my opinion, it is not possible for any reasonable person acting with elementary care and fairness to construe the said police report as containing a statement that on detailed enquiries conducted by the police it was found that there is no such person as described in the notice. It is, therefore, extremely surprising to be told that such an impression came to be formed by the District Magistrate and that it was on the basis thereof that he thought it fit to proceed not only against the surety concerned but also against a member of the bar who had only attested an affidavit filed by the said surety. It is, therefore, extremely surprising to be told that such an impression came to be formed by the District Magistrate and that it was on the basis thereof that he thought it fit to proceed not only against the surety concerned but also against a member of the bar who had only attested an affidavit filed by the said surety. The solitary circumstance relied on by the District Magistrate in his report as constituting the whole foundation for allegedly initiating proceedings under section 476 of the Criminal Procedure Code against the petitioner, of which the issuance of the impugned notice is said to be the first step, has thus been found to be totally non-existent. I have already remarked that the police report is not susceptible of being interpreted by any reasonable person as containing a statement that there was no such individual as described in the notice. It is a fundamental requirement of criminal jurisprudence that the powers conferred on a Magistrate, which are very wide in their ambit, should be used with great care and circumspection and never in a casual or rash fashion. The Magistrates are expected to act as guardians of the law and while they should certainly deal firmly with persons who are found to have clearly transgressed the penal law of the country, they cannot be permitted to misuse their powers and function as oppressive tyrants subjecting persons to arbitrary harassment. I make no secret of my opinion that the action taken by the District Magistrate, in the present case, in issuing a notice to the petitioner, who is a member of the bar, was most highly arbitrary and the very casual fashion in which the said action has been done renders it all the more objectionable. To level an accusation against a member of the legal profession that he has knowingly committed the highly improper act of false attestation of an affidavit is an extremely serious step. It cannot be ignored that having regard to the high standards expected of the legal profession any such step is bound to cause serious damage to the reputation of the concerned advocate. This makes it all the more imperative that any such proceeding should be initiated only after very careful deliberation and only in cases where a very strong prima facie case necessitating such action in public interest is made out. This makes it all the more imperative that any such proceeding should be initiated only after very careful deliberation and only in cases where a very strong prima facie case necessitating such action in public interest is made out. One should therefore have expected from a senior and experienced judicial officer occupying the position of a District Magistrate a much more responsible and careful treatment of such a serious matter. Unfortunately, however, it is found that in this case the District Magistrate has taken the impugned action against the petitioner in a careless, arbitrary and high-handed fashion. 7. It is to be remembered that the petitioner had filed appearance as advocate only on behalf of Kamalasanan, the accused in C.C. Nos. 216 and 217 of 1973. He had no direct part at all in the execution of the bond by the surety and all that he had done was to attest the two affidavits filed by the surety Thankappan Nair. Under rule 102 of the Criminal Rules of Practice affidavits intended for use in judicial proceedings may be sworn or affirmed before any judicial officer, a Registrar or Sub Registrar, the chief ministerial officer of any civil or criminal court, a member of Parliament or of the Legislature of any State, the President or Executive authority or a member of any Municipal Council or Corporation or other local body, a gazetted officer in the service of Central or State Government, a Commissioned Officer in the Armed Forces of India, or an advocate of the High Court or the Supreme Court. The petitioner being an advocate of the High Court of this State was competent to authenticate the affidavits of the surety and he had only performed the said function in attesting the affidavits filed by Thankappan Nair. The sureties had executed the bond before the District Magistrate and before accepting the said bond and acting upon it, it was the plain duty of the District Magistrate to satisfy himself about the true identity, reliability and sufficiency of the sureties. It was his function to scrutinise the bond executed by the surety and ensure that it was not deficient in particulars relating to the description and full address of the surety. It was his function to scrutinise the bond executed by the surety and ensure that it was not deficient in particulars relating to the description and full address of the surety. If subsequently any difficulty is experienced in tracing out the surety and effecting service of notices on him on account of the insufficiency of such particulars contained in the bond the responsibility or blame therefor rests surely on the court which accepted such a bond and not at all on the person who had only attested the affidavit of the surety. The attestation of the affidavit could have been done by any one of the categories of persons mentioned in rule 102 and the mere fact that in this case it happened to be by an advocate cannot make the slightest difference to the legal position. 8. Even if all the facts stated in the report submitted to this court by the District Magistrate are assumed to be correct, it is difficult to understand how it could have appeared to the District Magistrate that any of the offences referred to in section 195 of the Criminal Procedure Code had been committed by the advocate who had merely attested the affidavit of the surety. The offences referred to in the relevant clauses of section 195 are those punishable under sections 193 to 196, 199, 200, 205, 206 to 211, 228, 463, 471, 475 and 476 of the Indian Penal Code. None of the above sections can be said to be attracted even if the attestation by the petitioner of the affidavit of the surety is assumed to be false. Hence even if it be that the District Magistrate had wrongly thought that the information contained in. the Police report warranted a prima facie inference that there had been a false personation by the executant of the bond and that the attestation of the affidavit of the surety by the petitioner was riot true, there was still no reasonable ground whatever for initiating any action against the petitioner purporting to be by way of a preliminary enquiry under section 476 of the Criminal Procedure Code. 9. The Senior Public Prosecutor to whom notice of this petition was given appeared in the case and his arguments which covered all the relevant aspects were of great assistance to the court. 9. The Senior Public Prosecutor to whom notice of this petition was given appeared in the case and his arguments which covered all the relevant aspects were of great assistance to the court. Even at the outset he very frankly and quite properly submitted to the court that having gone through all the papers he was unable to find any legal basis or sanction for the action taken against the petitioner by the District Magistrate and was not therefore in a position to defend it. As correctly pointed out by the Senior Public Prosecutor, though the District Magistrate has said in his report that the notice has been issued to the petitioner "as part of the preliminary enquiry contemplated under section 476 of the Criminal Procedure Code"� it is very significant that the notice has not been issued in Form No. 96 which is the form prescribed by the Criminal Rules of Practice for use in relation to a preliminary enquiry under section 476 of the Criminal Procedure Code. There is, therefore, considerable difficulty to accept at its face value the statement contained in the report of the District Magistrate that the notice was issued by him to the petitioner as part of a preliminary enquiry which he proposed to hold under section 476 of the Criminal Procedure Code. If such had been the intention, the notice would not have been in the form in which it has been issued to the petitioner making no mention at all of any proposal to take action against him under sections 195 and 476 of the Criminal Procedure Code. In these circumstances I cannot certainly find fault with the petitioner advocate for suggesting that the reference to sections 195 and 476 of the Criminal Procedure Code in the report of the District Magistrate may be only the result of an afterthought. I do not, however, wish to pursue this matter further in this judgment but merely leave it there with the above observation. 10. It was mentioned at the bar by the petitioner advocate during the course of his arguments that recently there have been two other instances where almost similar action was taken by the same District Magistrate against two other advocate practising in his court. 10. It was mentioned at the bar by the petitioner advocate during the course of his arguments that recently there have been two other instances where almost similar action was taken by the same District Magistrate against two other advocate practising in his court. It was said that in one of these two cases the advocate concerned when he appeared before the District Magistrate in response to the notice, was remanded to custody and in the other case the advocate is said to have been subjected by the District Magistrate to suffer the indignity of being made to stand in open court from morning till practically the rising of the court for the day. The petitioner advocate submitted that he is referring to these incidents only with a view to explain why the petitioner has come up to this court immediately on his being served with the notice issued to him by the District Magistrate instead of appearing before the Magistrate on the appointed date and placing his objections and representations before him. Since the above submissions were made by the petitioner counsel only during the course of the final arguments in this petition there was no occasion for this court to verify their correctness by calling for a report regarding the said matter from the District Magistrate. But, judging from the manner in which the District Magistrate has taken the action against the petitioner in this case, one may have little reason for surprise if the details submitted by counsel relating to the earlier incidents in his court are also found, on verification, to be fully correct. It therefore appears to me to be necessary to impress upon the District Magistrate the imperative necessity for a complete reorientation of his attitude towards the persons attending his court and more particularly towards the members of the bar whose role in the set up of our judicial system is no less important than that of the presiding officer of the court. It is indeed a sad day if this court is put to the necessity of having to point out to a senior Magistrate that the powers conferred on a court under the criminal law are not meant to be used as instruments of oppression for asserting imperious authority over persons or for compelling their subservience and that any attempt in that direction will only serve to reveal a sad lack of maturity and balance of judicial mind and temperament qualities that are indispensable for rendering a person suitable to hold any responsible judicial officer. 11. Inasmuch as I have already found that the action taken against the petitioner by the District Magistrate is totally devoid of any legal sanction and highly arbitrary, it is unnecessary for me to investigate the further case put forward by the petitioner that the said action has been taken by the District Magistrate for the purpose of humiliating the petitioner because of some personal prejudice, which allegation has been strongly denied by the District Magistrate in his report. 12. In the result, I hold that the action of the District Magistrate in issuing the impugned notice to the petitioner constitutes a grave misuse of his powers and also a flagrant abuse of the process of his court and hence in exercise of the powers of this court under section 561A of the Criminal Procedure Code I quash the said notice.