No complaint was lodged against the prosecutrix for filing a false affidavit whereas the petitioners were sought to be proceeded against for advising her to state her age falsely. If a person comes to swear an affidavit and wants to mention a particular fact the Counsel is not supposed to hold an enquiry regarding that fact and only thereafter help him swear an affidavit as the primary responsibility always remains upon the person who swear an affidavit. The learned ASJ totally ignored and overlooked what the prosecutrix had done.
R.C. Chopra, J.
1. This petition under Section 397 read with Sections 401 and 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code" only) has been filed by New Delhi Bar Association as well as the two Advocates, petitioner Nos. 2 and 3 against whom the learned Metropolitan Magistrate vide orders dated 20.11.1995 took cognizance for offences under Sections 182 and 192 of the Indian Penal Code and issued process.
2. The facts relevant for the disposal of this petition, briefly stated, are that an FIR No. 555/95 was registered at P.S. Trilok Puri under Sections 366A/341/506/376 read with Section 34, IPC. The accused moved an application for bail which came up for hearing on 15.11.1995 before Shri S.N. Dhingra, learned Additional Sessions Judge, New Delhi. The bail application was supported by an affidavit of the prosecutrix Suman in which she mentioned her age as 18 years. However, in the course of hearing before the Court she stated that her age was 17 years and some months only and not 18 years and she had mentioned her age as 18 years at the instance of petitioner Nos. 2 and 3. The learned ASJ held that an application which is accompanied by this kind of affidavit shows that witness is being pressurized and was of the view that the bail application should be rejected on this ground alone whatever be the merits. Counsel for the accused/petitioners herein submitted that the prosecutrix had approached them along with her father and the age was given by the father of the prosecutrix. This plea was not accepted on the ground that had it been so the prosecutrix would not have stated before the Court that the Counsel had asked her to state her age as 18 years. The application for bail was rejected vide orders dated 15.11.1995.
3. On 17.11.1995 the learned ASJ made a complaint under Section 195 of the Code to ACMM, Karkardooma Courts for initiating action under Sections 182 and 192 of the IPC against the petitioner-Advocates on the ground that they had made the prosecutrix state her age falsely in the affidavit which was to be used in judicial proceedings. On the basis of this complaint the learned Metropolitan Magistrate issued summons against the two petitioners herein for offences under Sections 182 and 192 of the IPC.
4. Learned Counsel for the petitioners has prayed for quashing of the summons as well as complaint mainly on the ground that the learned ASJ had no justification or material to accept the bald statement of the prosecutrix and reject the plea of the Advocates that the age had been mentioned at the instance of the father of the prosecutrix. It is submitted that no action was taken against the prosecutrix for filing a false affidavit. It is also pointed out that in the main case under Section 376, IPC the prosecutrix as well as her father turned hostile and did not make any allegation against the accused persons and as such the accused were acquitted by the learned ASJ vide orders dated 7.11.1996. It is argued that the action against the petitioners was unwarranted, unjustified and abuse of process of law inasmuch as Counsels are supposed to act upon the instructions given to them by their clients and they cannot be put to the peril of prosecution merely on the assertion of a person like the prosecutrix whose credibility was doubtful.
5. Learned Counsel for the State has not opposed the petitioners and has supported their prayer that the proceedings initiated against the Advocates/ petitioners were an abuse of the process of law and unwarranted.
6. After considering the submissions made by learned Counsel for the petitioners and going through the material on record, this Court finds that the learned ASJ had acted in haste in initiating proceedings under Sections 182 and 192 of the IPC against them. Learned ASJ had the statement of the prosecutrix on one hand that she had been advised to disclose her age by the petitioners, who were Counsels of the accused, and the statement of the Counsels on the other hand who were pleading that the age had been disclosed by the prosecutrix and her father and accordingly mentioned in the affidavit. No enquiry was held to find out as to who appeared to be truthful. It is not at all understandable as to why learned ASJ was impressed by the statement of the prosecutrix and not by the statement of the Counsels who are officers of the Court and should ordinarily be believed unless there is some material to hold otherwise. In the orders dated 15.11.1995 no findings were recorded that the petitioners should be prosecuted under Sections 182 and 192 of IPC and it is not disclosed on record as to why after two days the learned ASJ thought of sending a complaint to learned ACMM for initiating prosecution against the petitioners.
7. The credibility of the prosecutrix Sumanstands fully exposed by the fact that the case, registered on the basis of her FIR under Sections 366A/34/506/376/34, IPC, has already resulted in acquittal on account of the fact that she as well as her father turned hostile and did not support the prosecution case. The accused were acquitted vide judgment dated 7.11.1996. Neither in the Sessions trial nor before the learned ASJ, who had ordered filing of a complaint against the two Advocates the prosecutrix had given any proof that her age was less than 18 years. It, therefore, cannot be said that on the date when she had sworn her affidavit she was less than 18 years of age. No complaint was lodged against the prosecutrix for filing a false affidavit whereas the petitioners were sought to be proceeded against for advising her to state her age falsely. If a person comes to swear an affidavit and wants to mention a particular fact the Counsel is not supposed to hold an enquiry regarding that fact and only thereafter help him swear an affidavit as the primary responsibility always remains upon the person who swear an affidavit. The learned ASJ totally ignored and overlooked what the prosecutrix had done.
8. This Court, therefore, has no hesitation in holding that the complaint filed by the learned ASJ on 17.11.1995 and the impugned summoning order dated 20.11.1995 passed by the learned Metropolitan Magistrate were an abuse of the process of law and based on no material on record. Accordingly, the complaint as well as process issued against petitioner Nos. 2 and 3 vide orders dated 20.11.1995 is quashed.
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Delhi High Court
New Delhi Bar Association (Regd.) ... vs National Capital Territory Of ... on 16 July, 2003
Equivalent citations: 2003 VIAD Delhi 294, 107 (2003) DLT 761
Bench: R Chopra
JUDGMENTR.C. Chopra, J.
1. This petition under Section 397 read with Sections 401 and 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code" only) has been filed by New Delhi Bar Association as well as the two Advocates, petitioner Nos. 2 and 3 against whom the learned Metropolitan Magistrate vide orders dated 20.11.1995 took cognizance for offences under Sections 182 and 192 of the Indian Penal Code and issued process.
2. The facts relevant for the disposal of this petition, briefly stated, are that an FIR No. 555/95 was registered at P.S. Trilok Puri under Sections 366A/341/506/376 read with Section 34, IPC. The accused moved an application for bail which came up for hearing on 15.11.1995 before Shri S.N. Dhingra, learned Additional Sessions Judge, New Delhi. The bail application was supported by an affidavit of the prosecutrix Suman in which she mentioned her age as 18 years. However, in the course of hearing before the Court she stated that her age was 17 years and some months only and not 18 years and she had mentioned her age as 18 years at the instance of petitioner Nos. 2 and 3. The learned ASJ held that an application which is accompanied by this kind of affidavit shows that witness is being pressurized and was of the view that the bail application should be rejected on this ground alone whatever be the merits. Counsel for the accused/petitioners herein submitted that the prosecutrix had approached them along with her father and the age was given by the father of the prosecutrix. This plea was not accepted on the ground that had it been so the prosecutrix would not have stated before the Court that the Counsel had asked her to state her age as 18 years. The application for bail was rejected vide orders dated 15.11.1995.
3. On 17.11.1995 the learned ASJ made a complaint under Section 195 of the Code to ACMM, Karkardooma Courts for initiating action under Sections 182 and 192 of the IPC against the petitioner-Advocates on the ground that they had made the prosecutrix state her age falsely in the affidavit which was to be used in judicial proceedings. On the basis of this complaint the learned Metropolitan Magistrate issued summons against the two petitioners herein for offences under Sections 182 and 192 of the IPC.
4. Learned Counsel for the petitioners has prayed for quashing of the summons as well as complaint mainly on the ground that the learned ASJ had no justification or material to accept the bald statement of the prosecutrix and reject the plea of the Advocates that the age had been mentioned at the instance of the father of the prosecutrix. It is submitted that no action was taken against the prosecutrix for filing a false affidavit. It is also pointed out that in the main case under Section 376, IPC the prosecutrix as well as her father turned hostile and did not make any allegation against the accused persons and as such the accused were acquitted by the learned ASJ vide orders dated 7.11.1996. It is argued that the action against the petitioners was unwarranted, unjustified and abuse of process of law inasmuch as Counsels are supposed to act upon the instructions given to them by their clients and they cannot be put to the peril of prosecution merely on the assertion of a person like the prosecutrix whose credibility was doubtful.
5. Learned Counsel for the State has not opposed the petitioners and has supported their prayer that the proceedings initiated against the Advocates/ petitioners were an abuse of the process of law and unwarranted.
6. After considering the submissions made by learned Counsel for the petitioners and going through the material on record, this Court finds that the learned ASJ had acted in haste in initiating proceedings under Sections 182 and 192 of the IPC against them. Learned ASJ had the statement of the prosecutrix on one hand that she had been advised to disclose her age by the petitioners, who were Counsels of the accused, and the statement of the Counsels on the other hand who were pleading that the age had been disclosed by the prosecutrix and her father and accordingly mentioned in the affidavit. No enquiry was held to find out as to who appeared to be truthful. It is not at all understandable as to why learned ASJ was impressed by the statement of the prosecutrix and not by the statement of the Counsels who are officers of the Court and should ordinarily be believed unless there is some material to hold otherwise. In the orders dated 15.11.1995 no findings were recorded that the petitioners should be prosecuted under Sections 182 and 192 of IPC and it is not disclosed on record as to why after two days the learned ASJ thought of sending a complaint to learned ACMM for initiating prosecution against the petitioners.
7. The credibility of the prosecutrix Sumanstands fully exposed by the fact that the case, registered on the basis of her FIR under Sections 366A/34/506/376/34, IPC, has already resulted in acquittal on account of the fact that she as well as her father turned hostile and did not support the prosecution case. The accused were acquitted vide judgment dated 7.11.1996. Neither in the Sessions trial nor before the learned ASJ, who had ordered filing of a complaint against the two Advocates the prosecutrix had given any proof that her age was less than 18 years. It, therefore, cannot be said that on the date when she had sworn her affidavit she was less than 18 years of age. No complaint was lodged against the prosecutrix for filing a false affidavit whereas the petitioners were sought to be proceeded against for advising her to state her age falsely. If a person comes to swear an affidavit and wants to mention a particular fact the Counsel is not supposed to hold an enquiry regarding that fact and only thereafter help him swear an affidavit as the primary responsibility always remains upon the person who swear an affidavit. The learned ASJ totally ignored and overlooked what the prosecutrix had done.
8. This Court, therefore, has no hesitation in holding that the complaint filed by the learned ASJ on 17.11.1995 and the impugned summoning order dated 20.11.1995 passed by the learned Metropolitan Magistrate were an abuse of the process of law and based on no material on record. Accordingly, the complaint as well as process issued against petitioner Nos. 2 and 3 vide orders dated 20.11.1995 is quashed.
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