"Lawyer Shall Not Bear The Sins Of The Client": Madras HC Quashes Criminal Case Against Advocate Over Fabricated Documents Submitted By Sureties

The Madurai Bench of Justice G.R Swaminathan observed that the lawyer was merely discharging his professional service in connection with the furnishing of sureties. He had not fabricated or manufactured the documents in question. The sureties had come to the court and they brought the documents with them. The petitioner had only presented the same along with his memo of appearance. The court also observed how the prosecution never contested that the petitioner had conspired with the sureties in the tampering of documents. Thus, the lawyer cannot be faulted with penal liability.

The court further observed that though as a matter of practice, the inherent power of the court under Section 482 CrPC is not exercised after the commencement of the trial, in exceptional cases, if the court comes to the conclusion that continuance of the prosecution would be an abuse of process, the power to quash can still be exercised. Seeing that in the present case, the petitioner lawyer was free of blame, the court stated that continuance of the impugned prosecution would certainly constitute an abuse of process, and quashing the same alone would serve the ends of justice.

Justice Swaminathan started the judgment by stating :

"The soul that sinneth, it shall die. The son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son : the righteousness of the righteous shall be upon him, and the wickedness of the wicked shall be upon him" - is a biblical saying. Applying it to the facts of the case, one can say "the lawyer shall not bear the sins of the client"

Background

The petitioner was a practicing advocate who had gone to the Judicial Magistrate Court Theni on 17.05.2011 to appear for an accused charged with an offense under Section 387 IPC. On the said date, sureties were to be furnished for the accused. When the Head Clerk perused the surety documents, she noted that the court seals affixed on the documents of the sureties namely, Mani and Muthukaruppan had been erased. She lodged a complaint with the Inspector of Police, District Crime Branch, Theni, and based on the complaint, a crime was registered against the two sureties. Based on their confession, the petitioner was impleaded as the fourth accused.

After the trial was concluded the Magistrate came to the conclusion that the offenses under Section 468, 415, 471, and 489 IPC were not made out. However, invoking power under Section 216 of Cr. P.C, charge under Section 465 IPC was framed afresh. The trial was also reopened. Questioning the same, and parallelly seeking to quash the prosecution, this Criminal Original Petition has been filed.

Liability of the Lawyer

The court pondered over the question of whether the counsel can be fastened with penal liability for tampering with the surety documents. The court discussed Section 441 of CrPC which deals with Bonds of accused and sureties. The court also discussed the scope of Section 441-A which was inserted by the Amendment Act 25 of 2005.

"441-A. Declaration by sureties
Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars."

For determining whether the sureties are  sufficient, the court has two options- either to accept the affidavit in proof of the facts contained therein relating to the sufficiency or fitness of the sureties or to hold an enquiry as held in Anbarasan v.State (2008). In Sagayam v. State (2017), the Court stated that if the particulars in the affidavit under Section 441-A are false, the deponent has to take the consequence and not the counsel. The counsel after all is only rendering professional service. If the documents produced by the surety are fake or bogus or not genuine, the surety has to be prosecuted. Not the counsel.

Considering this position in the present case, the court deemed it fit not to continue the prosecution with respect to the petitioner.

Case Title: R Vijayagopal v. The Inspector of Police and Another

Case No: Crl O.P(MD) No. 53 of 2022

Counsel for Petitioner: Mr. K.R Laxman

Counsel for Respondent: Mr M. Veeranthiran

Citation: 2022 LiveLaw (Mad) 172

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