2024 (9) TMI 1805 - SC - Indian Laws

Challenge dismissed over unauthorized filings; AORs must list authorized advocates by 11:30 a.m. per 30.12.2022 Notice

BHAGWAN SINGH Versus STATE OF U.P. & ORS.

The SC dismissed the challenge and disposed of the appeal, addressing misuse of court process by filing proceedings in a person's name without consent. It ... Seeking quashing of the proceedings of the supplementary chargesheet for the offence under Section 363, 366, 376 IPC - fraud on the court - abuse of process of law - filing and prosecution of court proceedings in the name of a person without his knowledge or consent by using forged/notarised vakalatnamas and affidavits - no Vakalatnama was filed in the said proceedings - HELD THAT:- The Notice only permits the Advocate-On-Record to mark the appearances of the Advocates appearing in the Court, through the link provided on the website or on the office mobile app of the Supreme Court. Meaning thereby, the Advocate on Record may mark the appearances of those Advocates who are actually appearing in the case i.e. the Advocate-on38 Record and the Advocates who are going to appear and argue the case on a particular day of hearing. The Advocate on Record is expected to know before 11:30 a.m. on the date of hearing as to which Advocate/Advocates is/are going to appear/argue the particular case, and is accordingly required to mark their appearances as instructed in the Notice. The Notice nowhere permits the Advocates-on-Record to mark appearances of the Advocates who are not authorized either to appear and argue the case. In view of the Notice/Circular dated 30.12.2022 and in furtherance of the afore-stated order passed by the Coordinate Bench, it is directed that the Advocates on-Record may mark the appearances of only those Advocates who are authorized to appear and argue the case on the particular day of hearing. Such names shall be given by the Advocate on Record on each day of hearing of the case as instructed in the Notice. If there is any change in the name of the arguing Advocate, it shall be duty of the concerned Advocate-on-Record to inform the concerned Court Master in advance or at the time of hearing of the case. The concerned Officers/Court Masters shall act accordingly. Appeal disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether filing and prosecution of court proceedings in the name of a person without his knowledge or consent by using forged/notarised vakalatnamas and affidavits constitutes a fraud on the Court and abuse of process warranting criminal investigation. 2. What is the legal standard and professional duty of Advocates-on-Record, other advocates, and Notaries when attesting/accepting vakalatnamas and affidavits; and whether conduct in the record amounts to professional misconduct or criminal liability. 3. Whether, in the factual matrix where multiple inconsistent statements, notarisation in absence of principal, and false filings are shown, the matter should be entrusted to a central investigating agency for registration of a regular case and probe of all links. 4. The scope and effect of the Registry's online appearance portal/circular: the responsibility of Advocates-on-Record to mark appearances only for advocates actually authorised to appear; and corrective measures to preserve sanctity of cause-lists and order sheets. ISSUE-WISE DETAILED ANALYSIS Issue 1: Fraud on the Court and abuse of process by filing proceedings in another's name using forged/notarised documents Legal framework: The judicial process is administered in furtherance of justice and cannot be allowed to be used as an instrument of oppression or abuse; fabrication or use of false documents in court proceedings attracts penal consequences under applicable penal statutes (including the framework reflected in the Bhartiya Nyaya Sanhita, 2023) and civil remedies such as quashing under inherent powers. Precedent Treatment: The Court relies on established principle that a petition or affidavit containing misleading/inaccurate statements to achieve an ulterior purpose amounts to abuse of process (as reflected in prior jurisprudence emphasising that courts must not become instruments of fraud). Interpretation and reasoning: The Court examined contemporaneous statements, affidavits and recorded admissions: (a) vakalatnama(s) and affidavit(s) were presented in the name of an individual who repeatedly disavowed knowledge of the filings and denied having signed; (b) the notary admitted attesting an affidavit without personal presence of the purported affiant, relying on signature identification by an advocate; (c) advocates altered or disclaimed prior statements about identification; (d) intermediaries (family members) gave inconsistent accounts about handing over vakalatnamas. The cumulative matrix establishes fabrication and submission of documents without the principal's consent, which not only falsely created litigation but sought to pursue recall and appellate remedies in higher courts. The Court reasoned that such acts amount to fraud on the Court and an abuse of the judicial process because they subvert the requirement of authentic authorisation and truthful affidavits essential for adversarial adjudication. Ratio vs. Obiter: Ratio - where false or fabricated documents and unauthorised filings are used to initiate or continue judicial proceedings in another's name, the same constitute a fraud on the Court and abuse of process warranting investigation and penal consequences; Obiter - broader policy observations on witness-threatening environments and systemic pressures on witnesses. Conclusion: The record established a brazen attempt to misuse the judicial process by filing proceedings in the name of a person without his authority; this conduct constitutes a fraud on the Court and abuse of process and cannot be permitted to stand. Issue 2: Duties and liability of Advocates-on-Record, other advocates and Notaries - professional and criminal dimensions Legal framework: Duties of Advocates are governed by the Bar Council of India Rules (Standards of Professional Conduct and Etiquette) and specific obligations of Advocates-on-Record are contained in Order IV (Rule 7) and Order XXI/XXII of the Supreme Court Rules, 2013. Functions and duties of Notaries are governed by the Notaries Act, 1952 and Notaries Rules, 1956 (including Rule 11 and Section 8). Precedent Treatment: The Court applied prior authority underscoring high ethical expectations of advocates as officers of the Court and that misstatements or misleading affidavits constitute abuse; it also cited decisions requiring diligent verification of facts by advocates appearing in the highest Court. Interpretation and reasoning: The Court analysed recorded admissions and apologies by an Advocate-on-Record and the Notary, and inconsistent statements by advocates who prepared and transmitted papers. Key findings: (a) an Advocate-on-Record certified identification/attestation though the certification was later disavowed; (b) a Notary attested an affidavit without personal presence of the deponent relying on signature identification by an advocate; (c) several advocates appeared or were shown in order sheets without proper authorisation by the principal. The Court reiterated that advocates must satisfy themselves about due execution of vakalatnamas and that notaries must act in strict compliance with statutory rules; failures may amount to professional misconduct and potentially criminal misconduct depending on the elements proved (knowledge of falsity, participation in fabrication, etc.). Ratio vs. Obiter: Ratio - an Advocate-on-Record or any advocate who certifies identification or accepts/attests documents without due verification breaches professional duties and may attract disciplinary/criminal consequences where there is participation in fabrication or knowledge of falsity; Notary attestation in absence of the deponent and without required due process is misconduct and renders the notary liable to action under the Notaries Act and rules; Obiter - exhortations on the sanctity of the Bar and ethical standards and references to literature on witnesses. Conclusion: The conduct of the advocates and notary recorded in the proceedings prima facie amounted to serious professional misconduct and, given the totality of facts, may attract criminal investigation; appropriate action by regulatory bodies (Bar Council, authorities dealing with notaries) and prosecuting agencies is warranted. Issue 3: Whether to direct a central agency investigation and hand over records Legal framework: Courts may direct registration of FIRs/entrust investigation to an appropriate agency where the matter involves systemic fraud on the courts, complex inter-state links or persons in positions of influence; judicial power to order investigation is exercised where it is necessary to protect the integrity of the judicial process and to uncover the entire chain of culpable conduct. Precedent Treatment: The Court relied on its supervisory jurisdiction and prior instances where investigations were ordered by superior courts in cases involving fraud on court or large scale abuse of process. Interpretation and reasoning: Given the multiplicity of players (petitioners, intermediaries, multiple advocates across fora, and a notary), inconsistent statements, admissions of improper notarisation/attestation and the objective of preserving sanctity of judicial process, the Court found that a comprehensive, authoritative probe was necessary to (i) ascertain criminal responsibility of all implicated persons, (ii) trace the genesis and chain of document fabrication and filings, and (iii) prevent further erosion of public confidence. The Court therefore directed the Central Bureau of Investigation (or designated central agency) to register a regular case (after preliminary inquiry if necessary), investigate all links and submit a report within a stipulated timeline; originals of specified records were to be handed over in sealed cover. Ratio vs. Obiter: Ratio - where a prima facie case of organised fabrication of court documents and misuse of processes is made out, the Court may direct a central agency investigation and hand over original records to facilitate a thorough probe; Obiter - procedural comments on retaining certified copies and handing originals in sealed cover to protect evidence chain. Conclusion: The complexity and gravity of the established facts justified entrusting investigation to the central agency and handing over original records for investigation, with a direction for a timely report. Issue 4: Interpretation of the Registry circular on online marking of appearances and the responsibility of Advocates-on-Record Legal framework: The Registry Notice/Circular activating the online appearance portal permits Advocates-on-Record to mark appearances of advocates 'appearing in court'; administrative practice must align with the purpose of ensuring accuracy of cause-lists and related benefits conferred on appearing advocates. Precedent Treatment: The Court referred to a coordinate bench decision interpreting the circular, emphasising that only advocates actually appearing or assisting in hearing should be marked present online; the Court adopted that interpretation. Interpretation and reasoning: The Court held that the circular creates an onerous responsibility on Advocates-on-Record to ensure that appearances they mark are only for advocates authorised and actually appearing or assisting on that day. The notice does not permit marking appearances of persons who are not present or not authorised. In the factual matrix where names of multiple advocates appeared though they were neither AOR nor arguing, the Court directed corrective measures: Advocates-on-Record must mark only authorised/actual advocates, inform Court Masters of any change, and Court Masters must act accordingly. Ratio vs. Obiter: Ratio - Advocates-on-Record must mark online appearances only for advocates who are actually authorised and will appear/assist; administrative practice permitting marking of unavailable or unauthorised names is impermissible and risks sanctity of proceedings; Obiter - guidance on implementation and communication with Bar Associations. Conclusion: The circular must be interpreted strictly; the AOR bears the duty to mark appearances truthfully and the Registry must implement safeguards; the Court directed compliance measures and communication to relevant Bar bodies. Final disposition and remedial directions (derived from conclusions above) The Court concluded that (i) a prima facie organised attempt to file and pursue false proceedings in the name of an unaware person was established and constituted fraud on the Court and abuse of process; (ii) several advocates and a notary prima facie breached professional and statutory duties and may face disciplinary/criminal consequences; (iii) the investigation was directed to be handed to the central agency to register and investigate all linked offences and persons; (iv) the Registry's online appearance practice must be strictly complied with by Advocates-on-Record and the Registry; and (v) the Registry should forward copies of the order to the Bar Council and Government for appropriate action. These measures were treated as operative directions (ratio) to preserve the integrity of the judicial process and ensure accountability.