(1.) This judgment will dispose of Criminal Misc. Nos. 3881-M and 3924-M of 1984. The facts giving rise thereto are almost identical, so are the law points and relief sought.
(2.) There are two prosecutions which are pending in the file of Judicial Magistrate Ist. Class, Hoshiarpur. They arose out of two incidences of the same date i.e. December 18, 1980. It is alleged that one Virender Kumar on December 18, 1980, got two deeds of power of attorney forged, one at Ballabgarh in Haryana and the other at Delhi. At Ballabgarh, he got a deed written from a professional Deed-Writer posing himself to be one Indivar Kumar, a cosharer in some agricultural land in village Patiarni, Tehsil and District Hoshiapur. The general attorney appointed was Virender Kumar, i.e. he himself. The deed was witnessed by Bani Singh Tewatia, Advocate, and one Puran Chand. Bani Singh Tewatia, Advocate, is petitioner in criminal Misc. No. 3924-M of the 1984. Similarly, on the same date at Delhi he impersonated himself as Neeraj Kumar, another co-sharer of village Patiarni, Tehsil and District Hoshiarpur, got a power of attorney drafted from Attar Chand, Advocate, and got it typed from a professional Deed-Writer, so as to confer power on Virender Kumar i.e. he himself, as the attorney. The deed was witnessed by Attar Chand, Advocate, and his clerk K. R. Karup. Attar Chand, Advocate, is petitioner in Criminal Misc. No. 3881-M of 1984.
(3.) The matter was brought to the notice of the police by yet another co-sharer V. K. Sood. Thereupon investigations commenced. Finally prosecutions were launched against Virender Kumar in both cases, but conjunctively against Bani Singh Tewatia, Advocate, and Puran Chand in relation to the crime committed at Ballabgarh and against Attar Singh Advocate and K. R. Karup for the crime committed at Delhi. It was also discovered that using those two deeds of power of attorney, Virender Kumar had effected sales of properties belonging to Indivar Kumar and Neeraj Kumar co-sharers. Thus, on November 11, 1983, the trial Magistrate passed two identical orders on each file, observing that prima facie Virender Kumar, the main accused, had forged a general power of attorney and Puran Chand and Bani Singh Tewatia, Advocate, in one case, and Attar Singh, Advocate, and K. R. Karup in the other were in conspiracy with him. Thus, he ordered Virender Kumar to be charged under Ss.467, 468, 471 and 120-B, Indian Panal Code, and the respective remaining two accused in each case for offences under S. 468 read with Ss. 109/120-B, Indian Penal Code. As a follow-up measure on November 12, 1983, the learned Magistrate framed charges against Virender Kumar in both the cases. When put to him, Virender Kumar pleaded guilty to the charges and pleaded for mercy. Then on November 12, 1983, the learned Magistrate passed identical orders, in passing various terms of imprisonment against Virender Kumar accused. Significantly, in those charges Virender Kumar had not been accused of any charge of conspiracy under S. 120-B, Indian Penal Code, having any suggested connection with the remaining two co-accused. It is later on March 26, 1984, that the learned Magistrate, who, too (by then a new incumbent), framed identical charges against the remaining two sets of accused not only under S. 468, Indian Penal Code, but under S. 467, Indian Penal Code as well, and additionally, under Ss. 109 and 120-B, Indian Penal Code. It is to challenge these orders of charge and the proceedings that the two advocates have in their respective petitions, approached this Court under S. 482, Code of Criminal Procedure.
(4.) The principal contention raised on behalf of the Advocate-petitioners is that their being witnesses to the deeds in question, per se did not render them liable to be prosecuted individually for offences under Ss. 467 and 468, Indian Penal Code, and that they could not be charged under Ss. 120-B/109, Indian Penal Code, when such charge has not been levelled against Virender Kumar, the principal accused, for the petitioners being in conspiracy with him or to have acted in aid of him for the preparation of forged registered powers of attorney. It is also maintained that there is no evidence worth the name on which the prosecution relied in its report under S. 173, Code of Criminal Procedure, which would disclose any concern of the petitioners with the principal accused Virender Kumar. Further, it is maintained that the mere fact that they have been witnesses to the deed does not even prima facie show that the petitioners were guilty associates in forging the powers of attorney. And lastly reliance is placed on a judgment of the Supreme Court in Hira Lal Jain v. Delhi Administration, (1973) 75 Pun LR 121, in which the following passage, highlighting the role of a lawyer in District Courts in this country was made: -
"The real charge against him is that of conspiracy under S. 120-B, IPC. But there is no prima facie evidence in respect of this charge. The documentary evidence only shows that the appellant made applications on behalf of the other accused, that he filed his vakalatnamas and that he identified them as the real claimants. It is well known that the main income of many lawyers in the District Courts is derived from the work of identifying persons and sureties in the Courts. The other accused must have told the appellant that they were the real claimants. He believed them and agreed to act for them. It seems to us that he did nothing beyond what a lawyer is authorised to do in a court of Law. There is no evidence to suggest that he had previous knowledge of the fact that the accused were not the rightful claimants. Again, there is no evidence whatsoever that there was any concern between him and the other accused antecedent to the filing of the applications and vakalatnamas in Court by him. In the absence of such evidence, it cannot be said that there is prima facie evidence for the offence of conspiracy against him. 10. Counsel for the respondent could not dispute before us that there was no direct evidence in respect of the offence of conspiracy against him. But he has submitted that there is circumstantial evidence. According to him there are two incriminating circumstances against the appellant. Firstly; there is the circumstance that he was engaged only for the purpose of identifying the other accused; secondly; he has appropriated a sum of Rupees 1,400/- towards his fees and it is a heavy fee. In our view the circumstances of the appellant being engaged by the accused for their identification is no incriminating evidence for the offence of conspiracy. Fee is an individual matter.........."
(5.) Here in these cases, these lawyers are also attributed to have identified respectively the executants of the powers of attorney before the respective Registrars, besides being witnesses. As has been spelled out by the Supreme Court in the afore-extracted passage, identification of a person before a Court or Authority is per se no incriminating evidence for the offence of conspiracy unless there could be evidence of some antecedent behaviour showing some concern or connection between the lawyer and the principal accused. From the files summoned from the Court below, no such evidence seems to be forthcoming. The evidence which the prosecution proposes to lead consists of the person who lodged the First Information Report, the persons who were impersonated, the evidence of the respective scribes, the evidence of the respective Registrars, and the evidence pertaining to the sale deeds which were effected on the use of the forged powers of attorney, with which the petitioners are not concerned. Such evidence, as the prosecution proposes to lead, is not even disputed by the petitioners. They even cannot dispute it in the presence of the principal accused having confessed to his guilt that he impersonated Indivar Kumar and Neeraj Kumar, the real owners of the property. But from these facts as disclosed in the police reports, neither the ingredients of S. 109, nor of S. 120-B, Indian Penal Code, can be spelled out. The act of the petitioners can neither, if accepted on its face value, be termed as instigation, nor as intentional aid to Virender Kumar. It cannot even be termed as a conspiracy by engaging themselves with Virender Kumar for the purpose. And in a criminal conspiracy two or more persons are required to agree to do or cause to be done an illegal act or an act which is legal by illegal means. It is only then that such an agreement is designated as criminal conspiracy. No such evidence is forthcoming herein on which the prosecution can legitimately bank upon. All what is hammered is that inferentially when the powers of attorney had been found to be forged, the aid rendered by the accused-petitioners must be deemed to be intentional. It could well be unintentional and in all probability was unintentional. Lawyers in District Courts unwittingly sometimes tend to be uncautious. Such an act even if attributed to the petitioners cannot come within the ambit of a wilful omission so as to bring it at the level of a positive act. Thus, from the facts and circumstances of these cases, I am of the view that the charge against the petitioners is based on no prima facie evidence in order to support it. None has been pointed out to me. Resultantly, the proceedings against them are nothing but an abuse of the process of the Court, requiring interference under S. 482, Code of Criminal Procedure, or even under S. 439, Code of Criminal Procedure.
(6.) For the aforesaid discussion, these petitions merit acceptance. Accordingly, the charges against the petitioners as also the proceedings against them are quashed.
(7.) Crl. Misc. No. 4693 of 1984 in Crl. Misc. No. 3924-M of 1984 and Crl. Misc. No. 4691 of 1984 in Crl. Misc. No. 3881-M of 1984 stand allowed, permitting assistance by the complainant. Petitions allowed.