B. L. HANSARIA, J. ( 1 ) BEING seized with a case in which an advocate is facing prosecution under S. 419 / 109, I. P. C. , the quashing of which has been prayed for in this petition, the learned single Judge desired that some issues of importance relating to the administration of justice may be decided by a larger Bench, and it is because of this that the matter is before us. ( 2 ) THE issues involved are : (I) Whether an advocate, while identifying a surety required for releasing an accused on bail, acts as a lawyer? (ii) Whether identification by a lawyer should at all be insisted, as is required by Form No. (M) 83-A of General Rules and Circular Orders (Criminal)? (iii) When an can advocate be prosecuted if it is subsequently found that a wrong person had been identified by him? ( 3 ) AS the matter involved the entire legal profession, a notice was issued on the Bar Council of the State which has appeared through Shri Mukherjee who is being assisted by Shri Haraprasad Naik of Sambalpur bar. Shri B. H. Mohanty states that Cuttack Bar Association has also intervened in the matter. We have perused the affidavit filed by the Secretary of the Bar Council and heard learned counsel appearing for the Bar Council as well as Shri Patnaik for the petitioner and Shri Das, learned Government Advocate for the State. The Bar Council Resolution, which is quoted at paragraph 4 of the affidavit reads as below :-"after perusal of all the suggestions of various Bar Associations as well as advocates and after thorough discussion the Bar Council is of the view that deliberate wrong identification by an advocate may amount to professional misconduct and also given rise to criminal liability depending upon the facts on each case and mere wrong identification by an advocate without anything more may not give rise to criminal liability as per principle laid down by the Hon'ble Supreme Court reported in AIR 1972 SC 2598 : (1973 Cri LJ 47)". ( 4 ) THE aforesaid shows that the Bar Council is not of the view that identifications by an advocate is not permissible or desirable. ( 4 ) THE aforesaid shows that the Bar Council is not of the view that identifications by an advocate is not permissible or desirable. Indeed, the resolution accepts that an advocate may identify, but states that it is only "deliberate wrong identification" which may give rise to professional misconduct or criminal liability upon the facts of each case. ( 5 ) IT is known that a counsel performs three functions. He acts, appears and pleads. The Bar Council of India has framed some rules governing advocates as finding place in Part VI of the Rules. Chapter I of which deals with restrictions on senior advocates, stating, inter alia, that a senior advocate shall not file a vakalatnama or act. The Explanation defines the expression "to Act" to mean "to file an appearance or any pleading or application in any court. . . . . . . . . or to do any act other than pleading required or authorised by law to be done. . . . . . . . . . . . ". So, an advocate, who is not a senior advocate, can 'act', which word would mean doing any act authorised by law. The question is whether identification can be said to be an act authorised by law. That this is so has been held in Hiralal v. Delhi Administration, AIR 1972 SC 2598 : (1973 Cri LJ 47), which case dealt with the question of committing an offence under S. 102-B read with Ss. 419, 420, 511, I. P. C. and S. 467 read with S. 471, I. P. C. by an advocate who falsely identifies a person in the court of law. In the present reference we are not addressing ourselves on the question as to whether ingredients of the aforesaid offences are present to merit quashing, which is the prayer of the petitioner, as that is a question which will be taken up by the learned single Judge. As to the act of identification, it was stated in paragraph 9 of Hiralal's case that by doing so, the advocate "did nothing beyond what a lawyer is authorised to do in a court of law". So, we would hold that identification is authorised by law, and if a lawyer identifies, he acts, which is authorised by law. This is our answer to the first question. So, we would hold that identification is authorised by law, and if a lawyer identifies, he acts, which is authorised by law. This is our answer to the first question. ( 6 ) THE second question is whether identification by an advocate should be insisted upon. Shri Mukherjee contends that none of the relevant sections of the Code of Criminal Procedure - these being 81, 436, 437 and 438, require identification. Our attention is also invited to S. 441 which deals with bond of accused and sureties. We are then referred to Form No. 45 of the Code, in which there is no mention about identification, which is enjoined by this Court's form noted above. If this Court's form is read with R. 72 finding place in General Rules and Circular Orders (Criminal), Vol. 1, the necessity of identification by an advocate becomes clear. Subrule ( 1) of that rule is relevant for our purpose which reads : -. "the responsibility for accepting the surety as solvent for the required amount is primarily that of the Presiding Officer of the Court and in ordinary cases he should discharge it himself by making such summary enquiry as in the circumstances of the case he might think fit. This enquiry should in no event be left to be done by the Bench Clerk or any other official of the Court. "it is apparent that before releasing an accused on bail, who is called upon to provide surety also, the court has to be satisfied that the person who is standing as a surety is acceptable. This is for good reasons, as without being satisfied about the acceptability of the surety, if the accused persons would be released on bail, there would be no way out to procure their presence if bail bond was to be not honoured, which would bring chaos in the system of administration of justice. So, the surety has to be one who is acceptable to the court. ( 7 ) NOW, how does a court feel satisfied about the acceptability of a surety? The court, except in rare cases where a surety may be personally known to it, has to rely on somebody to regard the surety as acceptable. Who else than an advocate can discharge this function in our system of administration of justice? ( 7 ) NOW, how does a court feel satisfied about the acceptability of a surety? The court, except in rare cases where a surety may be personally known to it, has to rely on somebody to regard the surety as acceptable. Who else than an advocate can discharge this function in our system of administration of justice? If the courts were not to insist on identification by advocates, the consequence would be, as submitted by Shri Naik, the accused persons would not be released on bail for a long time or not released at all, which consequence cannot be allowed to happen. It is the identification of the surety by an advocate which assures the mind of the court, resulting in acceptance of the surety. ( 8 ) ONE of the submissions made before the learned single Judge was that to make the surety acceptable it may be insisted by the Court that he should file an application along with the recent photograph attested by the nearest public official with his seal, namely, the Tahsildar, B. D. O. , Officer-inlcharge of the police station, Sarpanch, Chairman of the Municipal Council or other responsible officers of the Government, M. L. A. etc. We do not find this submission workable because, in such a case, the Court shall have to be satisfied that attestation has been properly done, or it has been attested by the correct person. In the present state of affairs prevailing in the country, it would be too much of risk for a Court to accept the surety the moment a photograph attested by one of the aforesaid functionaries is filed. We would not like the Courts to take such a risk. As presently advised, therefore, we are of the opinion that there is no viable alternative to the identification by an advocate, and so, there is no necessity of suggesting any modification to Form No. (M) 83-A. ( 9 ) A further question of general importance for the legal profession may be that under what circumstances an advocate identifying a surety should be thought of for prosecution in case it is found that the identification was wrong. As to this, we would first observe that when an advocate identifies a surety, the Court does not question the advocate to find out, nor is it possible to find out, whether the identification by him is correct or not. As to this, we would first observe that when an advocate identifies a surety, the Court does not question the advocate to find out, nor is it possible to find out, whether the identification by him is correct or not. It is for the advocate concerned to get himself satisfied as best as he can under the circumstances whether he is identifying a correct person. It is his responsibility and not that of the Court. As to how an advocate shall feel satisfied in this regard is a matter on which we do not propose to say anything as that would vary from case to case and circumstance to circumstance. As, however, an advocate shall ultimately be convicted for false identification only on being proved that the identification was made attracting the required mens rea contemplated by Ss. 419, 420, 511, 467 or 205 of the Penal Code, it would be desirable for the Court before deciding to prosecute the advocate to satisfy itself, as far as possible, that the identification by the advocate was false. This would avoid those prosecutions which may flounder even at the threshold because of the High Courts exercising the power of quashing, which in a case of the present nature would be permissible, if taking the allegations made on their face value and accepting them in their entirety, would not constitute the offence alleged, which is one of the grounds of quashing, as stated in R. P. Kapoor v. State of Punjab, AIR 1960 SC 866 : (1960 Cri LJ 1239), which is also the purport of Hiralal's decision (1973 Cri LJ 47) (SC), in which case commitment of an advocate to the Sessions Court in a case of the present nature came to be quashed, because of the absence of the required mens rea. This would take care of unfounded prosecution of advocates on the ground of false identification. This would help advocates to engage themselves in such an act without inhibition which would also ensure smooth functioning of the system. This should satisfy the mind of the Bar Council which wants protection of its members from unwanted prosecutions for acts done by them in due discharge of their professional work. ( 10 ) THE third question posed above is not amenable to a general answer. This should satisfy the mind of the Bar Council which wants protection of its members from unwanted prosecutions for acts done by them in due discharge of their professional work. ( 10 ) THE third question posed above is not amenable to a general answer. It would depend on the offence alleged against the advocate which would determine whether mens rea is required, and if so, of what nature. It would vary from case to case. We do not, therefore, propose to say anything in this regard. ( 11 ) LET a copy of this order be forwarded to the State Bar Council and let the purport of what has been stated above about the desirability of a preliminary enquiry before deciding to prosecute an advocate for false identification be brought to the notice of all the District and Sessions Judges for information of all the judicial officers under them. ( 12 ) THE case may now be placed before the learned single Judge for deciding it on merits. ( 13 ) B. N. DASH, J. : -. I agree. Order accordingly.