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2005 DIGILAW 660 (PAT)

Sikandar Paswan v. State Of Bihar

2005-07-28

RADHA MOHAN PRASAD

body2005
Judgment 1. In course of hearing bail applications, it has come to light that it has become practice to get the affidavits sworn by a person as pairvikar, who is identified by the so called Authorised Clerks of the lawyer other than through whom the bail applications are filed. 2. Recently, in the case of Damodar Chaudhary vs. The State of Bihar (Cr. Misc. No. 20787/05), which was filed through Sri Gauri Shankar, Advocate, the affidavit of the bail application was sworn by one Prem Kumar as Pairvikar and he was identified by one Anish Kumar Sinha, so called authorised clerk bearing registration No. 7253/ 05 to Mr. Prem Kumar, Advocate. On query, Gauri Shankar stated that he does not know the said Anish Kumar Sinha. He stated that one Navin Kumar Sinha is attached with him as authorised clerk. Still the person who swear the affidavit was identified by the so called authorised clerk of Mr. Prem Kumar, Advocate, and not through the registered clerk of the advocate through whom the bail application was filed. 3. In the circumstances aforementioned, this Court found it difficult to rely upon the statements filed on affidavit, and further, directed the Registrar General of this Court to report as to whether such affidavits can be entertained and the matter has been directed to be put up after submission of the report. 4. In the case of Dhananjay Sharma vs. The State of Bihar (Cr. Misc. No. 20927/05), the bail application has been filed through Sri Narendra Kumar, Advocate. In paragraph-9 it is claimed that the petitioner has no criminal antecedent. The affidavit has been sworn by one Jairam Mistry claiming to be the father and pairvikar of the petitioner. He has again not been identified by the registered clerk of the lawyer through whom the bail application is filed. He has been identified by one Prem Kumar, so called authorized clerk of Mr. Arjun Prasad, Advocate.. Most surprising thing is that in the cause title the name of the father of the petitioner is mentioned as Gaya Ram, whereas Jairam Mistry who has sworn the affidavit has claimed to be the father and pairvikar of the petitioner. Thus, apparently, the affidavit is false. Arjun Prasad, Advocate.. Most surprising thing is that in the cause title the name of the father of the petitioner is mentioned as Gaya Ram, whereas Jairam Mistry who has sworn the affidavit has claimed to be the father and pairvikar of the petitioner. Thus, apparently, the affidavit is false. On query made, learned counsel of the petitioner has not been able to produce the person who has sworn the affidavit nor the so called authorised clerk who has identified the said Jairam Mistry. 5. In the case of Raj Kumar Mandal & Anr. vs. The State of Bihar (Cr. Misc. No. 19477/05), when this Court expressed inability to enlarge the petitioners on bail mainly on account of bad antecedents, learned counsel for the petitioners made submission that co-accused Mahesh Yadav who also carries bad antecedent has been enlarged on bail by the High Court vide order dated 16.6.2005 passed in Cr. Misc. No. 20407 of 2005. Accordingly, the matter was passed over and the records of Cr. Misc. No. 20407/05 was called for. Next day, none appeared on behalf of the petitioner. However, on perusal of records, it transpired that in paragraph-10 of the miscellaneous application filed on behalf of Mahesh Yadav it has been claimed that he has no criminal antecedent and the Court considering the said fact directed for his release on bail. However, from the order of the learned Sessions Judge in the case of Raj Kumar Mandal, this Court found that Mahesh Yadav and Raj Kumar Mandal are charge-sheeted accused of Ladaniya P.S. Case No. 22 of 2001 and they were in custody as suspects also in Ladaniya P.S. Case No. 33 of 2004 under section 395 I.P.C. From the order of the Sessions Judge, it further appears that the petitioner Ashok Mandal and others are wanted in three different cases, all under section 395 I.P.C. Thus, the prayer for bail made on behalf of the petitioners Raj Kumar Mandal and Ashok Mandal were rejected vide order dated 27.7.2005. As, apparently, false statement was made in the miscellaneous application filed on behalf of co-accused Mahesh Yadav, who was granted bail on consideration of same, this Court directed that the Court concerned may report the matter to the High Court regarding criminal antecedent of Mahesh Yadav, if any. 6. As, apparently, false statement was made in the miscellaneous application filed on behalf of co-accused Mahesh Yadav, who was granted bail on consideration of same, this Court directed that the Court concerned may report the matter to the High Court regarding criminal antecedent of Mahesh Yadav, if any. 6. It has been brought to my notice that in some similar matters, Bench of this Court directed for holding enquiry and lodging of criminal case for swearing false affidavit, but up-till-now, there has been no fruitful result as the police has also failed to trace out the culprit. 7. In most of the cases, bail applications have been affidavited by the pairvikars and identified by the so called authorised clerks of the lawyer other than through whom such bail applications are filed. 8. In order to check this mal-practice, I consider it proper to lay down that the affidavits in the bail applications must be sworn by some one who is related to the petitioner except in the bail applications filed through legal aid forum or which have already been filed. Further the person swearing the affidavit must be identified by the registered clerk of the lawyer through whom the bail application is filed. 9. However, as some grievance has been raised that many juniors do not have their own registered clerk, the matter was discussed in the Court, and in presence of Sri Rajendra Prasad Singh, Chairman, Bihar State Bar Council, Mr. Yogesh Chandra Verma, Secretary of the Advocate Association and many other members of all the three associations including Mr. Hare Krishna Kumar of Bar Association & Mr. Birendra Pd. Verma of Lawyers Association it was agreed that the identification by registered clerk of the lawyer through whom the miscellaneous application is filed may be dispensed with at least where certificate like civil revision is filed by the lawyer through whom the bail application is filed that "there is no registered clerk attached with me or the clerk is not available, and the person who has identified the deponent is known to me and attached as a Registered Clerk with Sri.........Advocate". 10. Accordingly, this Court directs that henceforth, the Oath Commissioner and the Stamp Reporter of this Court, must verify the compliance of the above requirement. 11. 10. Accordingly, this Court directs that henceforth, the Oath Commissioner and the Stamp Reporter of this Court, must verify the compliance of the above requirement. 11. However, as prayed on behalf of the petitioner, the matter is adjourned for listing in the week commencing on 8th August, 2005 to enable filing of proper affidavit/certificate. 12. Let a copy of this order be circulated to all concern including all the three Associations for information and compliance.