Applying the ratio of the above decisions, in our view, there
is no prima facie evidence to show that the appellants had
intended to cause damage or injury or any other acts. Since the
disputed version in the vakalatnama appears to be an inadvertent
mistake with no intention to make misrepresentation, in our view,
the direction of the High Court to lodge a criminal complaint
against the appellants cannot be sustained and the same is liable
to be set aside.
22. The learned counsel for the State submitted that in Crime
No.1331/2016, criminal case was registered based on the
direction of the High Court and upon completion of the
investigation, charge sheet has also been filed. As held in Pepsi
Foods Limited and another v. Special Judge Magistrate and
others (1998) 5 SCC 749, summoning of an accused in a criminal
case is a serious thing; more so to face a trial in criminal case
registered with the direction of the High Court. Since the
appellants themselves have admitted their signatures in the
vakalatnama and the version in the vakalatnama that they have
signed at Madurai on 18.08.2016 is an advertent mistake, in our
view, even if the trial proceeds, there may not be any possibility of
the appellants being convicted for the alleged offences of forgery
and for making forged document.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.855 OF 2019
SASIKALA PUSHPA Vs STATE OF TAMIL NADU
R. BANUMATHI, J.
Dated:May 07, 2019
Leave granted.
2. These appeals [SLP(Crl.) Nos.7252, 7287 and 8206 of
2016] arise out of the judgment dated 14.09.2016 passed by the
Madurai Bench of Madras High Court dismissing anticipatory bail
1
application in Crl. OP(MD) No.15370 of 2016 filed by the
appellants. By the same judgment, the learned Single Judge of
the High Court directed the Registrar (Judicial) to lodge a
complaint with the jurisdictional police station against the
appellants with respect to the alleged forgery committed by them
in signing the vakalatnama. Pursuant to the direction of the High
Court, the Registrar (Judicial) lodged a complaint with K. Pudur
Police Station, Madurai on 19.09.2016, on the basis of which, FIR
in Crime No.1331/2016 for the offences punishable under
Sections 193, 466, 468 and 471 IPC was registered against the
appellants.
3. The first appellant was the then Member of Rajya Sabha
and expelled Member of AIADMK Political Party. The third
appellant is the husband of the first appellant. A complaint was
filed by one Banumathi who was then working as maid in the
house of the appellants in the year 2011 alleging that she was
sexually harassed while she was working in the house of the
appellants. Based on the said complaint, a criminal case was
registered against all the appellants in Crime No.5/2016 in All
Women’s Police Station under Sections 294(b), 323, 344, 354(A)
and 506(i) IPC and under Section 4 of the Tamil Nadu Prohibition
2
of Harassment of Women Act, 2002. The first appellant denied all
the allegations and claimed that the same was result of political
vendetta against her.
4. The appellants filed bail application under Section 438
Cr.P.C. in Crl.OP(MD) No.15370 of 2016 against the said
offences before the Madurai Bench of Madras High Court along
with vakalatnama bearing the signature of appellants No.1 and 3
dated 18.08.2016. The first appellant left for Singapore from New
Delhi on 17.08.2016. While filing bail application in Crl.OP(MD)
No.15370 of 2016, the appellants filed vakalatnama wherein it
was stated that the said vakalatnama was signed by the
appellants before Advocate Mr. Vijaykumar on 17.08.2016 at
Madurai. Challenging the maintainability of the bail petition and
the vakalatnama, the respondent-State filed preliminary
objections and submitted that appellant No.1 had left for
Singapore from New Delhi on 17.08.2016 at 23.15 hours.
Similarly, appellant No.3 had left for Singapore from Bengaluru on
18.08.2016 at 09.30 AM. It was alleged that the appellants filed
anticipatory bail application on 18.08.2016 as if they were present
in Madurai on 17.08.2016 and signed the affidavit and
vakalatnama in the presence of an advocate at Madurai. The
3
High Court vide order dated 23.08.2016 directed the appellants to
appear before the court on 29.08.2016 and to give their
explanation with regard to the said preliminary objection.
Accordingly, the appellants appeared before the court on the said
date and submitted their affidavit before the High Court stating
that the date mentioned in the vakalatnama was an inadvertent
mistake.
5. In the impugned judgment, the High Court held that the
explanations given by the appellants are not satisfactory and the
same is contradictory to the written version as contained in the
vakalatnama. Referring to the affidavit filed by the appellants, the
High Court pointed out that appellant No.1 has given explanation
that she never came to Madurai for signing the vakalatnama and
that she had never signed the vakalatnama in the presence of
advocate Mr. Vijaykumar at Madurai. The learned Single Judge
therefore held that prima facie, it appears that the document has
been forged and the same has been signed and executed outside
Madurai and produced before this court as though, it has been
signed and executed at Madurai and the same has been utilized
and filed before the High Court. On the above findings, the High
Court directed the Registrar (Judicial) to lodge the complaint
4
against the appellants with the jurisdictional police station.
Pursuant to the direction of the High Court, the Registrar
(Judicial) lodged a complaint with K. Pudur Police Station,
Madurai on 19.09.2016. Based on the complaint lodged by the
Registrar (Judicial) of the High Court, FIR in Crime No.1331/2016
was registered with K. Pudur Police Station, Madurai on
19.09.2016 for the offences punishable under Sections 193, 466,
468 and 471 IPC.
6. Being aggrieved, the appellants have filed these appeals.
By the order dated 26.09.2016, the Supreme Court directed that
no coercive action be taken against the appellants in Crime
No.1331/2016 and also in Crime No.5/2016 and granted interim
protection to the appellants from arrest.
7. It has been urged by Mr. Sanjay Hegde, learned senior
counsel appearing for the appellants that the High Court erred in
not considering the fact that the vakalatnama contains the
signature of the appellants and that the date thereon is a purely
clerical error. It was submitted that the High Court has not
recorded a finding to the effect that it is ‘expedient in the interest
of justice’ to lodge a complaint against the appellants and the
High Court erred in issuing directions to lodge the complaint to
5
the police for registering criminal case against the appellants.
Further, it was contended that the High Court also erred in law in
treating the vakalatnama filed by the appellants as the main
reason for dismissing the anticipatory bail application.
8. Mr. Yogesh Kanna, learned counsel appearing for the State
of Tamil Nadu submitted that the High Court has categorically
found that the first appellant has not signed the vakalatnama in
Madurai on 18.08.2016 and therefore, the appellants have
committed fraud upon the court and the High Court rightly issued
directions to the Registrar for lodging complaint against the
appellants. The learned counsel further submitted that the first
appellant being the then Member of Parliament and her husbandthe
third appellant being a businessman and influential person
are not cooperating with the investigation and the first appellant
has given evasive reply to the questions raised by the
Investigation Officer. It was submitted that no grounds are made
out for setting aside the directions issued by the High Court and
for quashing of the FIR No.1331/2016 registered on the directions
of the High Court. The learned counsel placed reliance upon
Sachida Nand Singh and another v. State of Bihar and another
(1998) 2 SCC 493.
6
9. We have carefully considered the submissions and perused
the impugned judgment and other materials placed on record.
The point falling for consideration is whether in the facts and
circumstances of the case, the court was right in issuing
directions to lodge the complaint against the appellants before the
concerned police station for forgery and for creation of forged
document.
10. It is fairly well settled that before lodging of the complaint, it
is necessary that the court must be satisfied that it was expedient
in the interest of justice to lodge the complaint. It is not
necessary that the court must use the actual words of Section
340 Cr.P.C.; but the court should record a finding indicating its
satisfaction that it is expedient in the interest of justice that an
enquiry should be made. Observing that under Section 340
Cr.P.C., the prosecution is to be launched only if it is expedient in
the interest of justice and not on mere allegations or to vindicate
personal vendetta, In Iqbal Singh Marwah v. Meenakshi Marwah
(2005) 4 SCC 370, this Court held as under:-
“23. In view of the language used in Section 340 CrPC the court is
not bound to make a complaint regarding commission of an offence
referred to in Section 195(1)(b), as the section is conditioned by the
words “court is of opinion that it is expedient in the interests of
7
justice”. This shows that such a course will be adopted only if the
interest of justice requires and not in every case. Before filing of the
complaint, the court may hold a preliminary enquiry and record a
finding to the effect that it is expedient in the interests of justice that
enquiry should be made into any of the offences referred to in Section
195(1)(b). This expediency will normally be judged by the court by
weighing not the magnitude of injury suffered by the person affected
by such forgery or forged document, but having regard to the effect or
impact, such commission of offence has upon administration of
justice. It is possible that such forged document or forgery may cause
a very serious or substantial injury to a person in the sense that it may
deprive him of a very valuable property or status or the like, but such
document may be just a piece of evidence produced or given in
evidence in court, where voluminous evidence may have been
adduced and the effect of such piece of evidence on the broad
concept of administration of justice may be minimal. In such
circumstances, the court may not consider it expedient in the interest
of justice to make a complaint. …...”
11. Before proceeding to make a complaint regarding
commission of an offence referred to in Section 195(1)(b) Cr.P.C.,
the court must satisfy itself that “it is expedient in the interest of
justice”. The language in Section 340 Cr.P.C. shows that such a
course will be adopted only if the interest of justice requires and
not in every case. It has to be seen in the facts and
circumstances of the present case whether any prima facie case
is made out for forgery or making a forged document warranting
8
issuance of directions for lodging the complaint under Section
193, 467, 468 and 471 IPC.
12. Based on the complaint of one Banumathi for the alleged
harassment, a case in Crime No.5/2016 under Sections 294(b),
323, 344, 354-A and 506(i) IPC and Section 4 of the Tamil Nadu
Prohibition of Harassment of Women Act, 2002 was registered
against the appellants. Appellant No.1 filed anticipatory bail
application No.1627/2016 before the High Court of Delhi. The
High Court of Delhi vide order dated 11.08.2016 granted interim
protection to the appellants and directed the appellants to avail
the remedy before the court of competent jurisdiction in the State
of Tamil Nadu or the High Court of Madras. The High Court of
Delhi directed that no coercive action be taken against the
appellants in FIR No.5/2016 till 22.08.2016 subject to their joining
the investigation as and when directed by the Investigating
Officer.
13. Pursuant to the order of the High Court of Delhi, the
appellants filed anticipatory bail application before the High Court
of Madras at Madurai Bench in Bail Application No.15370/2016
on 18.08.2016. In the said application, preliminary objection was
raised by the State alleging “that the appellants have played fraud
9
on the court by filing a vakalatnama signed by them on
17.08.2016 attested by an advocate from Madurai as if appellants
No.1 and 3 were present in Madurai on 17.08.2016 whereas
appellant No.1 left for Singapore from New Delhi on 17.08.2016”.
The third appellant left for Singapore from Bengaluru on
18.08.2016. Alleging that they have filed false vakalatnama, the
respondent-State raised objection for maintainability of the
petition. In the meanwhile, on 22.08.2016, the Investigating
Officer included Section 9(I)(n) read with Section 10, Section 16
read with Section 17 of Protection of Children from Sexual
Offences Act, 2012 in Crime No.5/2016.
14. The High Court rejected the anticipatory bail application and
declined to grant pre-arrest bail in Crime No.5/2016. The High
Court held that the first appellant never came to Madurai for
signing the vakalatnama in the presence of advocate Vijaykumar
and therefore, prima facie it appears that the document has been
forged and the same has been signed and executed outside
Madurai as though it has been signed and executed at Madurai
and the same has been utilized by the appellants before the
court. Placing reliance upon Sachida Nand Singh, the High Court
observed that the act committed by the appellants amount to
10
fraud played upon the court and thus, directed the Registrar
(Judicial) to lodge a complaint against all the appellants who
signed the vakalatnama in Crl.O.P.(MD) No.15370/2016.
15. In the present appeals, we are mainly concerned with the
findings of the High Court that by filing the vakalatnama in
Crl.O.P.(MD) No.15370/2016, the appellants have played fraud
upon the court and the issuance of the direction to the Registrar
(Judicial) to lodge the complaint against the appellants for forgery.
As pointed out earlier, the appellants have filed Crl.O.P.(MD)
No.15370/2016 on 18.08.2016 in which they have filed the
vakalatnama wherein it had been stated as under:-
“Executed before me this 17th day of August, 2016. Before me, S.
Vijaykumar, No.51 law Chambers, High Court Madurai.”
The above version in the vakalatnama looks as if appellants No.1
and 3 have signed the vakalatnama in Madurai on 17.08.2016;
but actually the first appellant did not visit Madurai and left for
Singapore from New Delhi on 17.08.2016 at 11.15 PM. It is
pertinent to note that in the affidavit filed by the appellants before
the High Court on 29.08.2016, the first appellant has taken the
plea that there has been a clerical error. Appellant No.1 has
stated that on 16.08.2016, she and her son-appellant No.2 signed
11
the vakalatnama in New Delhi and that the same was signed
through appellant No.3 who was in Bengaluru. It is stated that
after receiving the vakalatnama, appellant No.3 reached Madurai
on the same day evening by road and handed over it to the
lawyer and returned back to Bengaluru by road on the same day
and thereafter, appellant No.3 left for Singapore in the morning of
18.08.2016 at 09.30 AM. According to the appellants, when the
vakalatnama was filed in the High Court of Madras at Madurai
Bench, it was mistakenly recorded that it has been signed on
18.08.2016 in Madurai. The explanation given by the appellants
appears to be plausible and we find no reason to disbelieve the
same and their affidavit dated 29.08.2016.
16. A vakalatnama is only a document which authorizes an
advocate to appear on behalf of the party and by and large, it has
no bearing on the merits of the case. We find force in the
contention of the learned senior counsel for the appellants that
there is no reason as to why a party would deliberately furnish a
false date and place in the vakalatnama. Appellant No.1 left for
Singapore from New Delhi on the night of 17.08.2016 and
appellant No.3 left for Singapore from Bengaluru on the morning
of 18.08.2016 at 09.30 AM which fact admitted by both the
12
parties. In the affidavit filed before the High Court, the first
appellant clearly stated that she and her son appellant No.2
signed the vakalatnama on 16.08.2016 and the same was sent to
her husband-appellant No.3 who was in Bengaluru who in turn
handed over the same to the advocate at Madurai. The
appellants have admitted their signatures in the vakalatnama.
The sequence of events as stated in the affidavit of the
appellants, in our view, do not make out a case of forgery. The
High Court has not recorded any finding as to why it rejected the
plea of the appellants made in the affidavit which has also been
reiterated by them in their explanation before the court when they
personally appeared before the court.
17. Mr. Yogesh Kanna, the learned counsel appearing for the
State of Tamil Nadu placed reliance upon Sachida Nand Singh
and submitted that even if any offence involving forgery of
document is committed outside the precincts of the court and long
before its production in the court, the same would also be treated
as one affecting the administration of justice. After referring to
various judgments, in Sachida Nand Singh, it was held as under:-
“11. The scope of the preliminary enquiry envisaged in Section
340(1) of the Code is to ascertain whether any offence affecting
administration of justice has been committed in respect of a document
13
produced in court or given in evidence in a proceeding in that Court.
In other words, the offence should have been committed during the
time when the document was in custodia legis.
12. It would be a strained thinking that any offence involving forgery of
a document if committed far outside the precincts of the Court and
long before its production in the Court, could also be treated as one
affecting administration of justice merely because that document later
reached the court records.”
18. There could be no two views about the proposition that even
if forgery is committed outside the precincts of the court and long
before its production in the court, it would also be treated as one
affecting the administration of justice. But in the present case, the
vakalatnama filed by the appellants in Crl.O.P.(MD)
No.15370/2016 seeking anticipatory bail in Crime No.5/2016
cannot be said to be a forged document. As pointed out earlier,
the appellants have admitted their signatures in the vakalatnama.
They only allege that it was mistakenly recorded that it has been
signed on 18.08.2016 at Madurai in the presence of the advocate.
Of course, the version in the vakalatnama is an incorrect
statement. In our opinion, the High Court was not justified in
terming the said mistake or error as fraud. Fraud implies
intentionally deception aimed or achieving some wrongful gain or
causing wrongful loss or injury to another. Intention being the
14
mens rea is the essential ingredient to hold that a fraud has been
played upon the court. The learned counsel for the State has
submitted that upon examination of the signature in the
vakalatnama, the hand-writing expert has opined that it is not the
signature of the appellants and therefore, the intention of the
appellants to create a forged document has been clearly made
out. We do not find any merit in the submission as the appellants
themselves admitted their signatures in the vakalatnama. In the
light of the statement of the appellants admitting their signatures
in the vakalatnama, we do not think that the opinion of the handwriting
expert would stand on any higher footing. There is nothing
on record to suggest that the appellants gained anything by
playing fraud or practising deception. In the absence of any
material to substantiate the allegations, in our view, the High
Court was not justified in accusing the appellants fraud.
19. Even assuming that the version in the vakalatnama is
wrong, mere incorrect statement in the vakalatnama would not
amount to create a forged document and it cannot be the reason
for exercising the jurisdiction under Section 340 Cr.P.C. for
issuance of direction to lodge the criminal complaint against the
appellants.
15
20. In Amarsang Nathaji v. Hardik Harshadbhai Patel (2017) 1
SCC 117, this Court held that before proceeding under Section
340 Cr.P.C., the court has to be satisfied about the deliberate
falsehood on a matter of substance and there must be a
reasonable foundation for the charge. Observing that some
inaccuracy in the statement or mere false statement may not
invite a prosecution, it was held as under:-
“6. The mere fact that a person has made a contradictory statement in
a judicial proceeding is not by itself always sufficient to justify a
prosecution under Sections 199 and 200 of the Penal Code, 1860 (45
of 1860) (hereinafter referred to as “IPC”); but it must be shown that
the defendant has intentionally given a false statement at any stage
of the judicial proceedings or fabricated false evidence for the
purpose of using the same at any stage of the judicial proceedings.
Even after the above position has emerged also, still the court has to
form an opinion that it is expedient in the interests of justice to initiate
an inquiry into the offences of false evidence and offences against
public justice and more specifically referred to in Section 340(1)
CrPC, having regard to the overall factual matrix as well as the
probable consequences of such a prosecution. (See K.T.M.S. Mohd.
v. Union of India (1992) 3 SCC 178). The court must be satisfied that
such an inquiry is required in the interests of justice and appropriate
in the facts of the case.”
The same view was quoted with approval in Chintamani Malviya
v. High Court of M.P. (2018) 6 SCC 15.
16
21. Applying the ratio of the above decisions, in our view, there
is no prima facie evidence to show that the appellants had
intended to cause damage or injury or any other acts. Since the
disputed version in the vakalatnama appears to be an inadvertent
mistake with no intention to make misrepresentation, in our view,
the direction of the High Court to lodge a criminal complaint
against the appellants cannot be sustained and the same is liable
to be set aside.
22. The learned counsel for the State submitted that in Crime
No.1331/2016, criminal case was registered based on the
direction of the High Court and upon completion of the
investigation, charge sheet has also been filed. As held in Pepsi
Foods Limited and another v. Special Judge Magistrate and
others (1998) 5 SCC 749, summoning of an accused in a criminal
case is a serious thing; more so to face a trial in criminal case
registered with the direction of the High Court. Since the
appellants themselves have admitted their signatures in the
vakalatnama and the version in the vakalatnama that they have
signed at Madurai on 18.08.2016 is an advertent mistake, in our
view, even if the trial proceeds, there may not be any possibility of
the appellants being convicted for the alleged offences of forgery
and for making forged document.
23. In Central Bureau of Investigation v. Ravi Shankar
Srivastava, IAS and Another (2006) 7 SCC 188, it was held as
under:-
“7. Exercise of power under Section 482 of the Code in a case of this
nature is the exception and not the rule. The section does not confer
any new powers on the High Court. It only saves the inherent power
which the Court possessed before the enactment of the Code. It
envisages three circumstances under which the inherent jurisdiction
may be exercised, namely, (i) to give effect to an order under the
Code, (ii) to prevent abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is neither possible nor
desirable to lay down any inflexible rule which would govern the
exercise of inherent jurisdiction. …….. In exercise of the powers the
court would be justified to quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the process of court or
quashing of these proceedings would otherwise serve the ends of
justice. When no offence is disclosed by the complaint, the court may
examine the question of fact. When a complaint is sought to be
quashed, it is permissible to look into the materials to assess what the
complainant has alleged and whether any offence is made out even if
the allegations are accepted in toto.”
24. In the facts and circumstances of the present case, in our
view, no useful purpose would be served by proceeding with the
criminal prosecution against the appellants. Without further going
into the merits of the case, we quash the FIR in Crime
18
No.1331/2016 and also quash the charge sheet pending before
the concerned Magistrate. The FIR and the charge sheet are
quashed only in the facts and circumstances of the present case
and to meet the ends of justice. It is made clear that taking
advantage of quashing of the case, the appellants shall not resort
to any further consequential proceedings.
25. Crime No.5/2016:- In the impugned order, the High Court
has declined to grant anticipatory bail to the appellants. The
Supreme Court vide order dated 26.09.2016 granted interim
protection to the appellants in Crime No.5/2016 registered in All
Women’s Police Station, Pudukkottai, Tuticorin district. The
learned senior counsel appearing for the appellants submitted
that the appellants have compromised the matter with the victim
Banumathi and that based on the compromise, they have already
filed quash petition before the High Court of Madras in which the
High Court has directed the parties to approach the concerned
police station. We are not inclined to go into the merits of the said
matter, except to extend interim protection granted to the
appellants in Crime No.5/2016 till the disposal of the said case.
26. Crime No.276/2016:- On 11.10.2016, the appellants along
with other accused are said to have caused damage to the
household articles and car of one Suganthi who was the advocate
for the victim-Banumathi in Crime No.5/2016. Based on the
complaint lodged by one Muthu-a relative of the said Suganthi, a
criminal case was registered against the appellants under
Sections 147, 148, 448, 506(II) IPC and under Section 3 of the
Tamil Nadu Public Property (Prevention of Damage and Loss Act,
1992) in Crime No.276/2016 of Thisayanvilai Police Station,
Tirunelveli. The appellants have filed the anticipatory bail
application before the High Court and by order dated 18.11.2016,
the High Court granted anticipatory bail to appellants No.2 and 3
and the learned Single Judge took the view that custodial
interrogation of appellant No.1 is required and declined to grant
anticipatory bail to appellant No.1. The order dated 18.11.2016 is
the subject matter of challenge in SLP(Crl.) Nos.9064/2016 and
9065/2016. When the matter came up for admission before this
Court, vide order dated 22.11.2016, this Court has granted
interim protection to appellant No.1. Therefore, case against the
appellants was registered under Sections 147, 148, 448, 506(ii)
IPC and Section 3 of Tamil Nadu Public Property (Prevention of
Damage and Loss Act, 1992) in Crime No.276/2016
(Thisayanvilai, Thirunelveli). The High Court declined anticipatory
20
bail to the first appellant by holding that her custodial interrogation
is necessary whereas appellants No.2 and 3 were granted
anticipatory bail.
27. In the result, all the appeals are disposed of as under:-
SLP(Crl.) No.7252/2016:- The impugned order of the High Court
issuing direction to lodge criminal complaint against the
appellants is set aside and the appeal is allowed. Considering
the facts and circumstances of the case, the FIR in Crime
No.1331/2016 (K. Pudur Police Station) and the charge sheet
filed thereon are quashed and the appeal is allowed accordingly.
As pointed out in para No.(23), taking advantage of the quashing
of the FIR in Crime No.1331 of 2016, the appellants shall not
resort to any further or consequential proceedings.
28. SLP(Crl.) Nos.7287/2016 and 8206/2016:- The interim
protection granted to the appellants in Crime No.5/2016 (AWPS,
Pudukkottai, Tuticorin District) is extended till the disposal of the
criminal case arising out of Crime No.5/2016.
29. SLP(Crl.) Nos.9064/2016 and 9065/2016:- The interim
protection granted to the appellants by the order dated
22.11.2016 in Crime No.276/2016 (Thisayanvilai Police Station,
21
Thirunelveli) is extended till the disposal of the criminal case
arising out of Crime No.276/2016. The appellants are granted
anticipatory bail in Crime No.276/2016 which shall hold good till
the disposal of the criminal case. So far as quashing of criminal
case in Crime No.276/2016, the appellants are at liberty to
approach the High Court and the High Court shall consider the
same on its own merits.
……………………….J.
[R. BANUMATHI]
………………………….J.
[S. ABDUL NAZEER]
New Delhi;
May 07, 2019
Print Page
is no prima facie evidence to show that the appellants had
intended to cause damage or injury or any other acts. Since the
disputed version in the vakalatnama appears to be an inadvertent
mistake with no intention to make misrepresentation, in our view,
the direction of the High Court to lodge a criminal complaint
against the appellants cannot be sustained and the same is liable
to be set aside.
22. The learned counsel for the State submitted that in Crime
No.1331/2016, criminal case was registered based on the
direction of the High Court and upon completion of the
investigation, charge sheet has also been filed. As held in Pepsi
Foods Limited and another v. Special Judge Magistrate and
others (1998) 5 SCC 749, summoning of an accused in a criminal
case is a serious thing; more so to face a trial in criminal case
registered with the direction of the High Court. Since the
appellants themselves have admitted their signatures in the
vakalatnama and the version in the vakalatnama that they have
signed at Madurai on 18.08.2016 is an advertent mistake, in our
view, even if the trial proceeds, there may not be any possibility of
the appellants being convicted for the alleged offences of forgery
and for making forged document.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.855 OF 2019
SASIKALA PUSHPA Vs STATE OF TAMIL NADU
R. BANUMATHI, J.
Dated:May 07, 2019
Leave granted.
2. These appeals [SLP(Crl.) Nos.7252, 7287 and 8206 of
2016] arise out of the judgment dated 14.09.2016 passed by the
Madurai Bench of Madras High Court dismissing anticipatory bail
1
application in Crl. OP(MD) No.15370 of 2016 filed by the
appellants. By the same judgment, the learned Single Judge of
the High Court directed the Registrar (Judicial) to lodge a
complaint with the jurisdictional police station against the
appellants with respect to the alleged forgery committed by them
in signing the vakalatnama. Pursuant to the direction of the High
Court, the Registrar (Judicial) lodged a complaint with K. Pudur
Police Station, Madurai on 19.09.2016, on the basis of which, FIR
in Crime No.1331/2016 for the offences punishable under
Sections 193, 466, 468 and 471 IPC was registered against the
appellants.
3. The first appellant was the then Member of Rajya Sabha
and expelled Member of AIADMK Political Party. The third
appellant is the husband of the first appellant. A complaint was
filed by one Banumathi who was then working as maid in the
house of the appellants in the year 2011 alleging that she was
sexually harassed while she was working in the house of the
appellants. Based on the said complaint, a criminal case was
registered against all the appellants in Crime No.5/2016 in All
Women’s Police Station under Sections 294(b), 323, 344, 354(A)
and 506(i) IPC and under Section 4 of the Tamil Nadu Prohibition
2
of Harassment of Women Act, 2002. The first appellant denied all
the allegations and claimed that the same was result of political
vendetta against her.
4. The appellants filed bail application under Section 438
Cr.P.C. in Crl.OP(MD) No.15370 of 2016 against the said
offences before the Madurai Bench of Madras High Court along
with vakalatnama bearing the signature of appellants No.1 and 3
dated 18.08.2016. The first appellant left for Singapore from New
Delhi on 17.08.2016. While filing bail application in Crl.OP(MD)
No.15370 of 2016, the appellants filed vakalatnama wherein it
was stated that the said vakalatnama was signed by the
appellants before Advocate Mr. Vijaykumar on 17.08.2016 at
Madurai. Challenging the maintainability of the bail petition and
the vakalatnama, the respondent-State filed preliminary
objections and submitted that appellant No.1 had left for
Singapore from New Delhi on 17.08.2016 at 23.15 hours.
Similarly, appellant No.3 had left for Singapore from Bengaluru on
18.08.2016 at 09.30 AM. It was alleged that the appellants filed
anticipatory bail application on 18.08.2016 as if they were present
in Madurai on 17.08.2016 and signed the affidavit and
vakalatnama in the presence of an advocate at Madurai. The
3
High Court vide order dated 23.08.2016 directed the appellants to
appear before the court on 29.08.2016 and to give their
explanation with regard to the said preliminary objection.
Accordingly, the appellants appeared before the court on the said
date and submitted their affidavit before the High Court stating
that the date mentioned in the vakalatnama was an inadvertent
mistake.
5. In the impugned judgment, the High Court held that the
explanations given by the appellants are not satisfactory and the
same is contradictory to the written version as contained in the
vakalatnama. Referring to the affidavit filed by the appellants, the
High Court pointed out that appellant No.1 has given explanation
that she never came to Madurai for signing the vakalatnama and
that she had never signed the vakalatnama in the presence of
advocate Mr. Vijaykumar at Madurai. The learned Single Judge
therefore held that prima facie, it appears that the document has
been forged and the same has been signed and executed outside
Madurai and produced before this court as though, it has been
signed and executed at Madurai and the same has been utilized
and filed before the High Court. On the above findings, the High
Court directed the Registrar (Judicial) to lodge the complaint
4
against the appellants with the jurisdictional police station.
Pursuant to the direction of the High Court, the Registrar
(Judicial) lodged a complaint with K. Pudur Police Station,
Madurai on 19.09.2016. Based on the complaint lodged by the
Registrar (Judicial) of the High Court, FIR in Crime No.1331/2016
was registered with K. Pudur Police Station, Madurai on
19.09.2016 for the offences punishable under Sections 193, 466,
468 and 471 IPC.
6. Being aggrieved, the appellants have filed these appeals.
By the order dated 26.09.2016, the Supreme Court directed that
no coercive action be taken against the appellants in Crime
No.1331/2016 and also in Crime No.5/2016 and granted interim
protection to the appellants from arrest.
7. It has been urged by Mr. Sanjay Hegde, learned senior
counsel appearing for the appellants that the High Court erred in
not considering the fact that the vakalatnama contains the
signature of the appellants and that the date thereon is a purely
clerical error. It was submitted that the High Court has not
recorded a finding to the effect that it is ‘expedient in the interest
of justice’ to lodge a complaint against the appellants and the
High Court erred in issuing directions to lodge the complaint to
5
the police for registering criminal case against the appellants.
Further, it was contended that the High Court also erred in law in
treating the vakalatnama filed by the appellants as the main
reason for dismissing the anticipatory bail application.
8. Mr. Yogesh Kanna, learned counsel appearing for the State
of Tamil Nadu submitted that the High Court has categorically
found that the first appellant has not signed the vakalatnama in
Madurai on 18.08.2016 and therefore, the appellants have
committed fraud upon the court and the High Court rightly issued
directions to the Registrar for lodging complaint against the
appellants. The learned counsel further submitted that the first
appellant being the then Member of Parliament and her husbandthe
third appellant being a businessman and influential person
are not cooperating with the investigation and the first appellant
has given evasive reply to the questions raised by the
Investigation Officer. It was submitted that no grounds are made
out for setting aside the directions issued by the High Court and
for quashing of the FIR No.1331/2016 registered on the directions
of the High Court. The learned counsel placed reliance upon
Sachida Nand Singh and another v. State of Bihar and another
(1998) 2 SCC 493.
6
9. We have carefully considered the submissions and perused
the impugned judgment and other materials placed on record.
The point falling for consideration is whether in the facts and
circumstances of the case, the court was right in issuing
directions to lodge the complaint against the appellants before the
concerned police station for forgery and for creation of forged
document.
10. It is fairly well settled that before lodging of the complaint, it
is necessary that the court must be satisfied that it was expedient
in the interest of justice to lodge the complaint. It is not
necessary that the court must use the actual words of Section
340 Cr.P.C.; but the court should record a finding indicating its
satisfaction that it is expedient in the interest of justice that an
enquiry should be made. Observing that under Section 340
Cr.P.C., the prosecution is to be launched only if it is expedient in
the interest of justice and not on mere allegations or to vindicate
personal vendetta, In Iqbal Singh Marwah v. Meenakshi Marwah
(2005) 4 SCC 370, this Court held as under:-
“23. In view of the language used in Section 340 CrPC the court is
not bound to make a complaint regarding commission of an offence
referred to in Section 195(1)(b), as the section is conditioned by the
words “court is of opinion that it is expedient in the interests of
7
justice”. This shows that such a course will be adopted only if the
interest of justice requires and not in every case. Before filing of the
complaint, the court may hold a preliminary enquiry and record a
finding to the effect that it is expedient in the interests of justice that
enquiry should be made into any of the offences referred to in Section
195(1)(b). This expediency will normally be judged by the court by
weighing not the magnitude of injury suffered by the person affected
by such forgery or forged document, but having regard to the effect or
impact, such commission of offence has upon administration of
justice. It is possible that such forged document or forgery may cause
a very serious or substantial injury to a person in the sense that it may
deprive him of a very valuable property or status or the like, but such
document may be just a piece of evidence produced or given in
evidence in court, where voluminous evidence may have been
adduced and the effect of such piece of evidence on the broad
concept of administration of justice may be minimal. In such
circumstances, the court may not consider it expedient in the interest
of justice to make a complaint. …...”
11. Before proceeding to make a complaint regarding
commission of an offence referred to in Section 195(1)(b) Cr.P.C.,
the court must satisfy itself that “it is expedient in the interest of
justice”. The language in Section 340 Cr.P.C. shows that such a
course will be adopted only if the interest of justice requires and
not in every case. It has to be seen in the facts and
circumstances of the present case whether any prima facie case
is made out for forgery or making a forged document warranting
8
issuance of directions for lodging the complaint under Section
193, 467, 468 and 471 IPC.
12. Based on the complaint of one Banumathi for the alleged
harassment, a case in Crime No.5/2016 under Sections 294(b),
323, 344, 354-A and 506(i) IPC and Section 4 of the Tamil Nadu
Prohibition of Harassment of Women Act, 2002 was registered
against the appellants. Appellant No.1 filed anticipatory bail
application No.1627/2016 before the High Court of Delhi. The
High Court of Delhi vide order dated 11.08.2016 granted interim
protection to the appellants and directed the appellants to avail
the remedy before the court of competent jurisdiction in the State
of Tamil Nadu or the High Court of Madras. The High Court of
Delhi directed that no coercive action be taken against the
appellants in FIR No.5/2016 till 22.08.2016 subject to their joining
the investigation as and when directed by the Investigating
Officer.
13. Pursuant to the order of the High Court of Delhi, the
appellants filed anticipatory bail application before the High Court
of Madras at Madurai Bench in Bail Application No.15370/2016
on 18.08.2016. In the said application, preliminary objection was
raised by the State alleging “that the appellants have played fraud
9
on the court by filing a vakalatnama signed by them on
17.08.2016 attested by an advocate from Madurai as if appellants
No.1 and 3 were present in Madurai on 17.08.2016 whereas
appellant No.1 left for Singapore from New Delhi on 17.08.2016”.
The third appellant left for Singapore from Bengaluru on
18.08.2016. Alleging that they have filed false vakalatnama, the
respondent-State raised objection for maintainability of the
petition. In the meanwhile, on 22.08.2016, the Investigating
Officer included Section 9(I)(n) read with Section 10, Section 16
read with Section 17 of Protection of Children from Sexual
Offences Act, 2012 in Crime No.5/2016.
14. The High Court rejected the anticipatory bail application and
declined to grant pre-arrest bail in Crime No.5/2016. The High
Court held that the first appellant never came to Madurai for
signing the vakalatnama in the presence of advocate Vijaykumar
and therefore, prima facie it appears that the document has been
forged and the same has been signed and executed outside
Madurai as though it has been signed and executed at Madurai
and the same has been utilized by the appellants before the
court. Placing reliance upon Sachida Nand Singh, the High Court
observed that the act committed by the appellants amount to
10
fraud played upon the court and thus, directed the Registrar
(Judicial) to lodge a complaint against all the appellants who
signed the vakalatnama in Crl.O.P.(MD) No.15370/2016.
15. In the present appeals, we are mainly concerned with the
findings of the High Court that by filing the vakalatnama in
Crl.O.P.(MD) No.15370/2016, the appellants have played fraud
upon the court and the issuance of the direction to the Registrar
(Judicial) to lodge the complaint against the appellants for forgery.
As pointed out earlier, the appellants have filed Crl.O.P.(MD)
No.15370/2016 on 18.08.2016 in which they have filed the
vakalatnama wherein it had been stated as under:-
“Executed before me this 17th day of August, 2016. Before me, S.
Vijaykumar, No.51 law Chambers, High Court Madurai.”
The above version in the vakalatnama looks as if appellants No.1
and 3 have signed the vakalatnama in Madurai on 17.08.2016;
but actually the first appellant did not visit Madurai and left for
Singapore from New Delhi on 17.08.2016 at 11.15 PM. It is
pertinent to note that in the affidavit filed by the appellants before
the High Court on 29.08.2016, the first appellant has taken the
plea that there has been a clerical error. Appellant No.1 has
stated that on 16.08.2016, she and her son-appellant No.2 signed
11
the vakalatnama in New Delhi and that the same was signed
through appellant No.3 who was in Bengaluru. It is stated that
after receiving the vakalatnama, appellant No.3 reached Madurai
on the same day evening by road and handed over it to the
lawyer and returned back to Bengaluru by road on the same day
and thereafter, appellant No.3 left for Singapore in the morning of
18.08.2016 at 09.30 AM. According to the appellants, when the
vakalatnama was filed in the High Court of Madras at Madurai
Bench, it was mistakenly recorded that it has been signed on
18.08.2016 in Madurai. The explanation given by the appellants
appears to be plausible and we find no reason to disbelieve the
same and their affidavit dated 29.08.2016.
16. A vakalatnama is only a document which authorizes an
advocate to appear on behalf of the party and by and large, it has
no bearing on the merits of the case. We find force in the
contention of the learned senior counsel for the appellants that
there is no reason as to why a party would deliberately furnish a
false date and place in the vakalatnama. Appellant No.1 left for
Singapore from New Delhi on the night of 17.08.2016 and
appellant No.3 left for Singapore from Bengaluru on the morning
of 18.08.2016 at 09.30 AM which fact admitted by both the
12
parties. In the affidavit filed before the High Court, the first
appellant clearly stated that she and her son appellant No.2
signed the vakalatnama on 16.08.2016 and the same was sent to
her husband-appellant No.3 who was in Bengaluru who in turn
handed over the same to the advocate at Madurai. The
appellants have admitted their signatures in the vakalatnama.
The sequence of events as stated in the affidavit of the
appellants, in our view, do not make out a case of forgery. The
High Court has not recorded any finding as to why it rejected the
plea of the appellants made in the affidavit which has also been
reiterated by them in their explanation before the court when they
personally appeared before the court.
17. Mr. Yogesh Kanna, the learned counsel appearing for the
State of Tamil Nadu placed reliance upon Sachida Nand Singh
and submitted that even if any offence involving forgery of
document is committed outside the precincts of the court and long
before its production in the court, the same would also be treated
as one affecting the administration of justice. After referring to
various judgments, in Sachida Nand Singh, it was held as under:-
“11. The scope of the preliminary enquiry envisaged in Section
340(1) of the Code is to ascertain whether any offence affecting
administration of justice has been committed in respect of a document
13
produced in court or given in evidence in a proceeding in that Court.
In other words, the offence should have been committed during the
time when the document was in custodia legis.
12. It would be a strained thinking that any offence involving forgery of
a document if committed far outside the precincts of the Court and
long before its production in the Court, could also be treated as one
affecting administration of justice merely because that document later
reached the court records.”
18. There could be no two views about the proposition that even
if forgery is committed outside the precincts of the court and long
before its production in the court, it would also be treated as one
affecting the administration of justice. But in the present case, the
vakalatnama filed by the appellants in Crl.O.P.(MD)
No.15370/2016 seeking anticipatory bail in Crime No.5/2016
cannot be said to be a forged document. As pointed out earlier,
the appellants have admitted their signatures in the vakalatnama.
They only allege that it was mistakenly recorded that it has been
signed on 18.08.2016 at Madurai in the presence of the advocate.
Of course, the version in the vakalatnama is an incorrect
statement. In our opinion, the High Court was not justified in
terming the said mistake or error as fraud. Fraud implies
intentionally deception aimed or achieving some wrongful gain or
causing wrongful loss or injury to another. Intention being the
14
mens rea is the essential ingredient to hold that a fraud has been
played upon the court. The learned counsel for the State has
submitted that upon examination of the signature in the
vakalatnama, the hand-writing expert has opined that it is not the
signature of the appellants and therefore, the intention of the
appellants to create a forged document has been clearly made
out. We do not find any merit in the submission as the appellants
themselves admitted their signatures in the vakalatnama. In the
light of the statement of the appellants admitting their signatures
in the vakalatnama, we do not think that the opinion of the handwriting
expert would stand on any higher footing. There is nothing
on record to suggest that the appellants gained anything by
playing fraud or practising deception. In the absence of any
material to substantiate the allegations, in our view, the High
Court was not justified in accusing the appellants fraud.
19. Even assuming that the version in the vakalatnama is
wrong, mere incorrect statement in the vakalatnama would not
amount to create a forged document and it cannot be the reason
for exercising the jurisdiction under Section 340 Cr.P.C. for
issuance of direction to lodge the criminal complaint against the
appellants.
15
20. In Amarsang Nathaji v. Hardik Harshadbhai Patel (2017) 1
SCC 117, this Court held that before proceeding under Section
340 Cr.P.C., the court has to be satisfied about the deliberate
falsehood on a matter of substance and there must be a
reasonable foundation for the charge. Observing that some
inaccuracy in the statement or mere false statement may not
invite a prosecution, it was held as under:-
“6. The mere fact that a person has made a contradictory statement in
a judicial proceeding is not by itself always sufficient to justify a
prosecution under Sections 199 and 200 of the Penal Code, 1860 (45
of 1860) (hereinafter referred to as “IPC”); but it must be shown that
the defendant has intentionally given a false statement at any stage
of the judicial proceedings or fabricated false evidence for the
purpose of using the same at any stage of the judicial proceedings.
Even after the above position has emerged also, still the court has to
form an opinion that it is expedient in the interests of justice to initiate
an inquiry into the offences of false evidence and offences against
public justice and more specifically referred to in Section 340(1)
CrPC, having regard to the overall factual matrix as well as the
probable consequences of such a prosecution. (See K.T.M.S. Mohd.
v. Union of India (1992) 3 SCC 178). The court must be satisfied that
such an inquiry is required in the interests of justice and appropriate
in the facts of the case.”
The same view was quoted with approval in Chintamani Malviya
v. High Court of M.P. (2018) 6 SCC 15.
16
21. Applying the ratio of the above decisions, in our view, there
is no prima facie evidence to show that the appellants had
intended to cause damage or injury or any other acts. Since the
disputed version in the vakalatnama appears to be an inadvertent
mistake with no intention to make misrepresentation, in our view,
the direction of the High Court to lodge a criminal complaint
against the appellants cannot be sustained and the same is liable
to be set aside.
22. The learned counsel for the State submitted that in Crime
No.1331/2016, criminal case was registered based on the
direction of the High Court and upon completion of the
investigation, charge sheet has also been filed. As held in Pepsi
Foods Limited and another v. Special Judge Magistrate and
others (1998) 5 SCC 749, summoning of an accused in a criminal
case is a serious thing; more so to face a trial in criminal case
registered with the direction of the High Court. Since the
appellants themselves have admitted their signatures in the
vakalatnama and the version in the vakalatnama that they have
signed at Madurai on 18.08.2016 is an advertent mistake, in our
view, even if the trial proceeds, there may not be any possibility of
the appellants being convicted for the alleged offences of forgery
and for making forged document.
23. In Central Bureau of Investigation v. Ravi Shankar
Srivastava, IAS and Another (2006) 7 SCC 188, it was held as
under:-
“7. Exercise of power under Section 482 of the Code in a case of this
nature is the exception and not the rule. The section does not confer
any new powers on the High Court. It only saves the inherent power
which the Court possessed before the enactment of the Code. It
envisages three circumstances under which the inherent jurisdiction
may be exercised, namely, (i) to give effect to an order under the
Code, (ii) to prevent abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is neither possible nor
desirable to lay down any inflexible rule which would govern the
exercise of inherent jurisdiction. …….. In exercise of the powers the
court would be justified to quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the process of court or
quashing of these proceedings would otherwise serve the ends of
justice. When no offence is disclosed by the complaint, the court may
examine the question of fact. When a complaint is sought to be
quashed, it is permissible to look into the materials to assess what the
complainant has alleged and whether any offence is made out even if
the allegations are accepted in toto.”
24. In the facts and circumstances of the present case, in our
view, no useful purpose would be served by proceeding with the
criminal prosecution against the appellants. Without further going
into the merits of the case, we quash the FIR in Crime
18
No.1331/2016 and also quash the charge sheet pending before
the concerned Magistrate. The FIR and the charge sheet are
quashed only in the facts and circumstances of the present case
and to meet the ends of justice. It is made clear that taking
advantage of quashing of the case, the appellants shall not resort
to any further consequential proceedings.
25. Crime No.5/2016:- In the impugned order, the High Court
has declined to grant anticipatory bail to the appellants. The
Supreme Court vide order dated 26.09.2016 granted interim
protection to the appellants in Crime No.5/2016 registered in All
Women’s Police Station, Pudukkottai, Tuticorin district. The
learned senior counsel appearing for the appellants submitted
that the appellants have compromised the matter with the victim
Banumathi and that based on the compromise, they have already
filed quash petition before the High Court of Madras in which the
High Court has directed the parties to approach the concerned
police station. We are not inclined to go into the merits of the said
matter, except to extend interim protection granted to the
appellants in Crime No.5/2016 till the disposal of the said case.
26. Crime No.276/2016:- On 11.10.2016, the appellants along
with other accused are said to have caused damage to the
household articles and car of one Suganthi who was the advocate
for the victim-Banumathi in Crime No.5/2016. Based on the
complaint lodged by one Muthu-a relative of the said Suganthi, a
criminal case was registered against the appellants under
Sections 147, 148, 448, 506(II) IPC and under Section 3 of the
Tamil Nadu Public Property (Prevention of Damage and Loss Act,
1992) in Crime No.276/2016 of Thisayanvilai Police Station,
Tirunelveli. The appellants have filed the anticipatory bail
application before the High Court and by order dated 18.11.2016,
the High Court granted anticipatory bail to appellants No.2 and 3
and the learned Single Judge took the view that custodial
interrogation of appellant No.1 is required and declined to grant
anticipatory bail to appellant No.1. The order dated 18.11.2016 is
the subject matter of challenge in SLP(Crl.) Nos.9064/2016 and
9065/2016. When the matter came up for admission before this
Court, vide order dated 22.11.2016, this Court has granted
interim protection to appellant No.1. Therefore, case against the
appellants was registered under Sections 147, 148, 448, 506(ii)
IPC and Section 3 of Tamil Nadu Public Property (Prevention of
Damage and Loss Act, 1992) in Crime No.276/2016
(Thisayanvilai, Thirunelveli). The High Court declined anticipatory
20
bail to the first appellant by holding that her custodial interrogation
is necessary whereas appellants No.2 and 3 were granted
anticipatory bail.
27. In the result, all the appeals are disposed of as under:-
SLP(Crl.) No.7252/2016:- The impugned order of the High Court
issuing direction to lodge criminal complaint against the
appellants is set aside and the appeal is allowed. Considering
the facts and circumstances of the case, the FIR in Crime
No.1331/2016 (K. Pudur Police Station) and the charge sheet
filed thereon are quashed and the appeal is allowed accordingly.
As pointed out in para No.(23), taking advantage of the quashing
of the FIR in Crime No.1331 of 2016, the appellants shall not
resort to any further or consequential proceedings.
28. SLP(Crl.) Nos.7287/2016 and 8206/2016:- The interim
protection granted to the appellants in Crime No.5/2016 (AWPS,
Pudukkottai, Tuticorin District) is extended till the disposal of the
criminal case arising out of Crime No.5/2016.
29. SLP(Crl.) Nos.9064/2016 and 9065/2016:- The interim
protection granted to the appellants by the order dated
22.11.2016 in Crime No.276/2016 (Thisayanvilai Police Station,
21
Thirunelveli) is extended till the disposal of the criminal case
arising out of Crime No.276/2016. The appellants are granted
anticipatory bail in Crime No.276/2016 which shall hold good till
the disposal of the criminal case. So far as quashing of criminal
case in Crime No.276/2016, the appellants are at liberty to
approach the High Court and the High Court shall consider the
same on its own merits.
……………………….J.
[R. BANUMATHI]
………………………….J.
[S. ABDUL NAZEER]
New Delhi;
May 07, 2019
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