Ram Asrey Tripathi v. State Of U. P. — 1984 DIGILAW 273 (ALL)

JUDGMENT K. Nath, J. 1. THE appellant Ram Asrey Tripathi is a practising lawyer in Rae Bareli. One Ausan was standing trial for an offence under section 396 IPC in State v. Ausan, Sessions Trial No. 158 of 1980, in the Court of Ilnd Addl. Sessions Judge, Rae Bareli. In order to obtain his bail, surety bounds of Ausan's father, Bhola, and another person, purporting to be his maternal uncle, Mathura, were filed. THE appellant Ram Asrey Tripathi appended the following endorsement of identification of Mathura on the surety bond on 4-10-1979; "Identified both the sureties (namely Bhola and Mathura) who have put their L. T. I. before me and are personally known to me and are fit sureties for the like amount (Rs. 5,000/-)". Subsequently, Ausan failed to appear for the purposes of trial. On enquiry been made, Mathura appeared before the court and denied having stood surety for Ausan. On being called upon by the learned Additional Sessions Judge to show cause in respect of false identification of Mathura who had denied having stood surety, the appellant filed a reply. Paper No. 18-B, explaining that the security bond had been accepted by the CJM not on account of identification by him, but on the report of the Tehsil, in consequence of which his responsibility ceased. He added that later on Ausan appeared in the court on 17-9-1980 and the case proceeded. He added that the Pairvi of Ausan was being done by his father Bhola in whose company Bhola's brother-in-law, i. e. Mathura, used to come, and that on the basis of the information given by Bhola and documents, he had identified Mathura in good faith as part of his professional duties and that, due to fear from it and threats of the police and in order to save himself from running about to the courts, Mathura had made a false and fictitious written submission that he had not stood surety. He, therefore, prayed for the notice to be discharged, 2. THE learned Additional Sessions Judge obtained sample thumb impressions of Mathura and forwarded the same to the Finger Print Expert of UP CID. THE report of the Expert was that the disputed thumb impression on the surety bond did not tally with that of Mathura. He, therefore, prayed for the notice to be discharged, 2. THE learned Additional Sessions Judge obtained sample thumb impressions of Mathura and forwarded the same to the Finger Print Expert of UP CID. THE report of the Expert was that the disputed thumb impression on the surety bond did not tally with that of Mathura. THE learned Additional Sessions Judge then recorded the deposition of Mathura PW 1, Bhola PW 2 and Finger Print Expert Moti Lal CW 1; all the witnesses were cross-examined on behalf of the appellant. No witness was examined by the appellant himself. The learned Additional Sessions Judge, on a consideration of the evidence, held that the purported thumb impression of Mathura on the disputed surety bond was not genuine and had not been affixed by the purported person, namely, PW 1 Mathura-material uncle of accused Ausan-and that appellant Ram Asrey Tripathi had personally identified a fake person as Mathura and had given a false certificate to that effect, on account of which the CJM accepted the bonds, on the basis of which accused Ausan was released. He was of the opinion that the appellant's act of giving a false certificate constituted a declaration within the meaning of Section 199 IPC and had further constituted an abetment of a fake person to impersonate as Mathura within the meaning of section 109 read with Section 205 IPC. He observed that the appellant had been indulging in making false identifications of persons in a number of cases in the past, and that it was expedient and necessary in the interest of justice to lodge a complaint against him under section 340 CrPC. He accordingly directed a complaint to be lodged under section 340 CrPC against the appellant for offences under sections 199 and 205 IPC read with section 109 IPC and such other provisions of the law as may be applicable. 3. THIS is an appeal under section 341 CrPC against the said order. 4. THE facts, stated above, have not been disputed by learned counsel for the appellant at the time of hearing of the appeal. THE main point urged by the learned counsel for the appellant is that the acceptance of the bond of Mathura was caused not by the identification made by the appellant, but on account of the Tehsil's report. 4. THE facts, stated above, have not been disputed by learned counsel for the appellant at the time of hearing of the appeal. THE main point urged by the learned counsel for the appellant is that the acceptance of the bond of Mathura was caused not by the identification made by the appellant, but on account of the Tehsil's report. It may be mentioned that after the surety bonds had been filed on 4-10-1979, the CJM directed their verification from Tehsil. On 12-10-1979 a report was made by the Tehsil stating that Mathura was solvent for Rs. 5,000/-. It is clear enough that this report only confirmed the solvency of Mathura and not his identity. On 29-10-1979 the CJM passed the following order on the surety bonds :- "Provisionally accepted on the basis of affidavit. Documents be sent back by proper channel for verification," It is clear enough that this order of provisional acceptance of the sureity bond rested upon the affidavits which had been filed by Bhola and Mathura on which identification of Mathura had been made by the appellant. It cannot, therefore, be said that the surety bond of Mathura had not been accepted on the basis of his identification by the appellant. Learned counsel for the appellant then says that ultimately Ausan, the accused, had surrendered before the court on 17-9-1980 and in due course, after trial, had been acquitted on 12-5-1981. This may be only an extenuating circumstance; it is not an exonerating circumstance. The commission of the offence, if any, would have been complete at the time of false identification of Mathura by the appellant; his subsequent appearance and acquittal could not affect the commission of the offence. 5. LEARNED counsel for the appellant then said that the mere identifica- tion of a person by an Advocate, in the course of his professional business, does not constitute any offence. Reliance has been placed on the case of State v. Roshan Lal, 1982 LLJ 180 in which the acquittal of Roshan Lal for offences under sections 120-B, 420 and 471 of the IPC was questioned in a criminal appeal. Roshan Lal was Public Relations Officer of a post office where one Chaman Lal had post office account. Chaman Lal died on 5-5-1976. Roshan Lal was Public Relations Officer of a post office where one Chaman Lal had post office account. Chaman Lal died on 5-5-1976. An application for withdrawal of money from the account of Chaman Lal, however, was made on 22-6-1976, on which Roshan Lal recorded a verification that Chaman Lal was personally known to him and had signed in his presence. Chaman Lal's brother Amar Nath, along with Roshan Lal, were prosecuted for offences under sections 120-B, 420 and 471 IPC. Amar Nath was convicted; but Roshan Lal being acquitted the State filed an appeal. The High Court observed that there was no doubt that Roshan Lal's endorsement of Chaman Lal having signed the withdrawal form in his presence was clearly false, but since Roshan Lal knew both Amar Nath and Chaman Lal, the former could endorse the verification of signatures of Chaman Lal "on trust and in good faith." It was observed that there was no evidence to show that Roshan Lal accused knew on June 22, 1976, that Chaman Lal has died; that there was nothing to suggest that Roshan Lal had any concert with Amar Nath or that he got any share out of this deal or that Amar Nath was cheating the department. Relying upon the observations made in the cases of Hiralal Jain v. Delhi Administration, AIR 1972 SC 2598, Baidyanath v. State of Bihar, AIR 1968 SC 1293, it was held that benefit of doubt could be given to Roshan Lal and that the impropriety or indiscretion on the part of Roshan Lal might have invited departmental action, but it would not be safe to punish him under the Penal Code. The appeal against acquittal was dismissed. 6. IT is noticeable that in the above case Chaman Lal had not appeared before Roshan Lal when Chaman Lal's brother, Amar Nath, obtained the verification from Roshan Lal on representation that Chaman Lal had signed the withdrawal form. In the present case, the own version of the appellant is that Bhola and Mathura had appeared before him in the past and that on the date, when he verified Mathura's thumb impressions on the surety bond as well as the affidavit in support thereof, the person claiming to be Mathura had appeared before him. In the present case, the own version of the appellant is that Bhola and Mathura had appeared before him in the past and that on the date, when he verified Mathura's thumb impressions on the surety bond as well as the affidavit in support thereof, the person claiming to be Mathura had appeared before him. His specific case was that Mathura, the genuine person, had affixed his thumb marks on the aforesaid documents in his presence, but had made false statement before the court only because of the fear and pressure of the police and in order to avoid running to the courts every now and then. In other words, it is not a case of bona fide mistake of identification by a person, but a claim of identification of a correct person with the added blame that the person concerned was not telling the truth. Roshan Lal's case, therefore, is of no help to the appellant. In the case of Hiralal Jain v. Delhi Administration, AIR 1972 SC 2598 certain payments were to be obtained form the court of Additional District Judge in consequence of certain land acquisition proceedings. Certain applications were filed for withdrawal of the amounts. Appellants Hira Lal filed a Vakalatnama along with applications. On the application of one of the claimants, Nand Lal, the appellant Hira Lal recorded a note of verification that he personally knew Nand Lal, son of Gopal, who had signed in his presence, and that in case of wrong payment he would be responsible to refund the amount. A voucher was prepared in the name of the appellant on behalf of another claimant Rattan Singh whose application had also been signed by the appellant. Subsequently, the real Rattan Singh appeared before the court and claimed the amount due to him. Immediately, the payment of the voucher was stopped, but the appellant had already encashed the voucher in respect of the amount payable to Rattan Singh. The appellant appropriated the sum of Rs. 1400/- to himself as his fee and deposited the rest in the account of Rattan Singh in the State Bank of India. Among other documentary evidence, the Hand Writing Expert's opinion was that the thumb impressions and signatures on the withdrawal applications and Vakalatnama of the appellant were of the applicants (which included the fake claimant). 1400/- to himself as his fee and deposited the rest in the account of Rattan Singh in the State Bank of India. Among other documentary evidence, the Hand Writing Expert's opinion was that the thumb impressions and signatures on the withdrawal applications and Vakalatnama of the appellant were of the applicants (which included the fake claimant). The Magistrate, therefore, committed all the accused to the Court of Session for trial for offences under sections 120-B read with sections 419, 420, 511 and Section 467 read with section 471 IPC. The revision before the High Court, against the order of committal, having failed, the matter figured before the Supreme Court. The only point raised before the Supreme Court was that there was no evidence to justify the framing of charges against appellant Hira Lal Jain. It was observed that the appellant had neither impersonated nor committed any forgery nor there was any prima facie evidence of conspiracy under section 120-B IPC against him. The Court then went on to observe that it was well-known that the main income of many lawyers in the District Courts was derived from the work of identifying persons and sureties in the Courts, that the other accused must have told the appellant that they were the real claimants, that the appellant believed them and agreed to act for them, that there was no evidence to suggest that he had previous knowledge of the fact that the accused were not the rightful claimants, and that there was no evidence, whatsoever, that there was any concert between him and the other accused antecedent to the filing of the applications and Vakalatnamas in Court. It was, therefore, held that in the absence of such evidence, it could not be said that there is prima facie evidence for the offence of conspiracy against him. It was also observed that the endorsement of the appellant that he took responsibility for refund of the amount, in case of wrong payment, suggested his bona fides; nor he would have deposited any of the received amounts in the bank. With these observations the order of commitment was quashed. 7. It was also observed that the endorsement of the appellant that he took responsibility for refund of the amount, in case of wrong payment, suggested his bona fides; nor he would have deposited any of the received amounts in the bank. With these observations the order of commitment was quashed. 7. THE important feature in the decision of the Supreme Court is that there was no evidence that Hira Lal had previous knowledge of the fact that the accused were not the rightful claimants and that his bona fides also appeared from the fact that he had personally undertaken to refund the amounts in case of wrong payments and had actually deposited the substantial amount in the bank account of the correct man. In the present case, the appellant knew who the correct person, namely, Mathura, was. THE real problem is that although on one hand he says that he recorded the identification of Mathura on the basis of the representation of Bhola, he insists that the person whom he had so identified was the real person and that real Mathura was only evading his responsibility on account of pressures and fear of the police and in order to avoid running over and over again to the courts. It is not his case that by a bona fide mistake he had identified an incorrect person on the representation made by Bhola; on the contrary, his previous knowledge of the the true person, named Mathura, would prima facie also constitute him to be an abettor of the offence of false impersonation. 8. IN the case of Baidyanath Prasad Srivastava v. State of Bihar, AIR 1960 SC 1393, two applications for government loans were made in the fictitious names of Durga Singh and Hari Shanker Singh, on which appellant Baidyanath Prasad Srivastava, a Mukhtear, had recorded a certificate that he knew Durga Singh and Hari Shanker Singh who had signed in his presence. The amount was drawn from the treasury, but ultimately it came to light that the said two persons Durga Singh and Hari Shanker Singh were fictitious. The appellant, therefore, was alleged to have entered into a conspiracy with the concerned accused to cheat the Government of Bihar of the money. The case of the appellant was that he had attested the application on the assurance of one Sheojee Prasad Karpardaj. The appellant, therefore, was alleged to have entered into a conspiracy with the concerned accused to cheat the Government of Bihar of the money. The case of the appellant was that he had attested the application on the assurance of one Sheojee Prasad Karpardaj. It was found on trial that Durga Singh and Hari Shanker Singh were fictitous persons and a fraud had been committed upon the SDM concerned and the government and treasury causing loss of Rs. 1,000/- to the government, but on the basis of the fact that the appellant had made the endorsement of verification on assurance of Sheojee Prasad Karpardaj and in view of the fact that another Mukhtear Devendra Prasad also had attested the applicants acquitted him. Devendra Prasad also was acquitted on the basis that he had recorded the attestation and verification on the assurance of one Rudradeo Singh. The High Court set aside the order of acquittal and convicted the appellant Baidyanath Prasad Srivastava of an offence under section 467 read with section 109 IPC. The Supreme Court, in criminal appeal against conviction, found that both the basis of the decision of High Court were erroneous. The first basis was that the appellant having alleged the making of the attestation on representation and assurance of Sheojee Prasad Karpardaj, did not lead any evidence in support thereof. The Supreme Court observed that in doing so the High Court had thrown the burden of proof upon the appellant which could be sustained. The second ground stated by the High Court was that Devendra Prasad did not examine himself under Section 342-A CrPC nor produced any evidence in support of the version that he made the attestation on the representation of one Rudradeo Singh. The Supreme Court observed that the observation of the High Court was in breach of the proviso to Section 342-A CrPC. With these observations the Supreme Court allowed the appeal and acquitted the appellant. The stage of trial has not arrived in the present case. What evidence may be led in support of the complaint, during the course of trial of the appellant, is yet to be seen. What is pertinent at this stage is whether there is prima facie evidence of the appellant having made a false declaration to his knowledge in connection with Court's proceedings and whether in having done so he abetted an impostor to impersonate. What is pertinent at this stage is whether there is prima facie evidence of the appellant having made a false declaration to his knowledge in connection with Court's proceedings and whether in having done so he abetted an impostor to impersonate. The material, referred to above, provides adequate prima facie ground for the view of the learned Additional Sessions Judge against the appellant in that direction. 9. IT is true enough that identification] of persons and sureties is an integral part of the legal practice of some lawyers, particularly junior ones, but perhaps this very feature of legal practice requires caution. There may be cases of bona fide erroneous identification, for, after all, it is by no means necessary that every litigant must have some lawyer of personal acquaintance. To a certain extent a practising lawyer can be persuaded to accept the submissions of his client; indeed, it is only the client's case and statement that a lawyer advocates. Things, however, must take a different perspective when the personality of the Advocate himself comes into picture. When a lawyer involves himself personally in a matter concerning his client, he is expected to exercise fullest caution because in doing so he is not only performing a part of his function as a member of the bar, but he is also discharging certain duties of an officer of the court on whom a court has an implicit faith in the first instance. Even the learned counsel for the appellant is not in a position to say that the appellant was not expected to exercise due care and caution. 10. AGAIN, there may be cases where inspite of due care and caution a lawyer may find himself to have been duped by his client. In such a case, perhaps, the court looks forward to the lawyer to make a clean breast of his fault; for no one is infallible and to forgive is devine. When it is discovered by a lawyer that he has been duped, he still has an opportunity of making out a case of bona fides and give some sort of assurance to the Court that the error, in which he fell, would not be repeated. Far from it, the appellant's explanation, Paper no. 18-B before the lower court, is one of justification. Far from it, the appellant's explanation, Paper no. 18-B before the lower court, is one of justification. Even in the grounds of appeal, before this Court, there is not a word of assurance, muchless, compunction. The courts are naturally quite reluctant to call a member of the bar to stand trial in respect of the Court's judicial proceedings for, after all, the Bench and the Bar are two inalienable parts of one entity which is entrusted with the high function of administration of justice. An Advocate is an officer of the court, but the mere fact of a person being an Advocate does not give any exemption to him from liability of a criminal act. Indeed, nobody is above the law. It, however, appears to me that the ingredients of the offence, contained in Section 199 IPC, are not made out prima facie. A declaration by a lawyer to identify a person, for the purposes of acceptance of such person as surety, is not a declaration which a court is bound or authorised by law to receive as evidence within the meaning of the Section. It is necessary that the declaration must be admissible in evidence as proof of the fact declared under any law, in consequence of which the Court is bound or authorised to receive it as such. It is not enough that there is no prohibition against reception of such a declaration as evidence by the Court. In the case of Ram Prasad v. Emperor, (1912) 13 CrLJ 769 an application was made to the District Magistrate for transfer of a criminal case from the court of Honorary Magistrate. The application was supported with a declaration from two other persons, but the declarations contained falsehood. It was held that the declarants were not guilty of an offence under section 199 IPC. The Allahabad High Court recorded that the declaration was not shown to be one which, under the Code of Criminal Procedure or any other law, the court (i. e. District Magistrate), before which the proceedings were pending, was bound or authorised by law to receive in evidence. It was held that the suggestion that there was no prohibition against reception of such a declaration did not render it to be admissible. It was held that the suggestion that there was no prohibition against reception of such a declaration did not render it to be admissible. In the present case, no law provides for declaration of the identity of a surety by a lawyer; it is a matter wholly discretionary with the court and in appropriate cases the court is fully competent to reject such declaration. 11. IN the case of Abdul Majid v. Krishna Lal Nag, ILR 20 Calcutta 724 the District Judge had appointed a common Manager of a certain property under section 95 of Bengal Tenancy Act and the applicant was called upon to deliver certain documents to the common Manager. When the applicant refused to comply, the District Magistrate instituted miscellaneous proceedings in respect thereof. IN those proceedings, the applicant filed certain affidavits which were found to be false. The Calcutta High Court held that those miscellaneous proceedings were not authorised by the Bengal Tenancy Act or any other law, nor was the District Judge competent to order the documents to be delivered to the common Manager, hence the applicant was not legally bound by oath to make the statement under section 193 IPC, and that since there was no provision of law under which the affidavit could be used in those proceedings, the false statements made in the affidavits did not fall within the mischief of section 199 IPC. 12. IN the case of Janki Rai v. Emperor, 1927 Allahabad 303 the applicant was punished for making a false declaration in a verified written statement. It was held that an allegation in a written statement is not evidence of any fact which the court is bound or authorised by law to receive and, therefore, the written statement, though verified under Order 6 rule 15 CPC by affidavit, could not be the basis of conviction under section 199 IPC. Such being the law, it appears to me that the appellant could not be considered to have committed any punishable offence under section 199 IPC in the present case, because no law has been shown to require the kind of declaration which is in question, to be such as the court below was bound or authorised by law to receive in evidence. Nevertheless, prima facie there is a case of abetment of false personation by some person in place of true Mathura punishable under section 205 read with section 109 IPC. It might as well involve an offence punishable under section 466 IPC read with Section 109 IPC because the person who impersonated as Mathura, affixed his thumb-mark. In the present case, the appellant identified him not only as the true person, but also as true surety who affixed the thumb-mark on the surety bond. In the case of Yasin Sheikh v. Emperor, 1905 (2) CrLJ (Calcutta) (?) the accused had identified as the husband who impersonated for the real husband and affixed his mark in the Register of Marriages maintained by the Mohammedan Registrar of Marriages. In consequence of the identification of impersonated registration, a divorce of the real husband from his wife was obtained. The court held that in making false identification of A, the accused could not be guilty of an offence under section 199 IPC because the Mohammedan Registrar of Marriages was not authorised by Act I of 1876 or any other law to receive in evidence a statement of a person identifying another as husband. It was, nevertheless, held that the commission of the offence of abetment of forgery of the signatures of the husband on Register of Marriages was proved because of the accused knew that A was not the husband. Consequently, the High Court upheld the conviction of the accused for the offence under section 466 IPC read with Section 114 IPC. That seems to be the position in the present case as well. 13. THE appeal is partly allowed and while the complaint for appellant's prosecution for an offence under section 199 IPC is quashed, the making of the complaint against him for his prosecution under section 205 IPC, and, in the words of the Additional Sessions Judge "such other provision of law as may be applicable," for example, under section 466 IPC, both read with section 109 IPC, is confirmed. Appeal partly allowed.