Summary
Special leave petitions were filed in the Supreme Court in the name of Bhagwan Singh, without his knowledge, to revive quashed rape proceedings against a key prosecution witness in the Nitish Katara murder case, using a vakalatnama and affidavit attested by advocates and a notary in his absence. Finding a fraud on the courts by his daughter, her husband and several advocates, the Court handed the investigation to the CBI and issued directions on Advocate-on-Record duties and the marking of appearances.
Issues
- Whether the special leave petitions had in fact been filed by or on the authority of the named appellant.
- What should follow where proceedings are filed in a person's name without his consent, on fabricated documents, with the participation of advocates and a notary.
- What duties Advocates-on-Record and notaries owe when attesting vakalatnamas and affidavits.
- Whose appearances an Advocate-on-Record may mark in the Record of Proceedings under the Registry's notice dated 30.12.2022.
Provisions considered
- Order IV Rule 7(b), Supreme Court Rules, 2013An Advocate-on-Record must certify that a vakalatnama was executed in his presence, or, if he accepts one already executed before a notary or advocate, endorse that he has satisfied himself of its due execution; here the AOR attested and identified the signature of an appellant he had never met and who was not present. (¶¶ 20, 34)
- Section 8, Notaries Act, 1952Lists a notary's functions; the notary had notarised the appellant's affidavit on identification by an advocate without the appellant appearing before him, and the Court noted that acts or omissions in breach of these duties amount to misconduct that may render a notary unfit. (¶¶ 18, 20, 37)
- Rule 11, Notaries Rules, 1956Governs transaction of business by a notary; the notary admitted he made no entry in the notarial register for the affidavit, and breaches of this rule were treated as misconduct. (¶¶ 18, 37)
- Part VI, Chapter II (Standards of Professional Conduct and Etiquette), Bar Council of India RulesAdvocates were reminded that as officers of the court they must conform to these rules in letter and spirit, even while fearlessly upholding their clients' interests. (¶ 33)
Held
- On the statements recorded in court and the affidavits, the named appellant had not filed or authorised the SLPs, had not met his daughter or son-in-law since their marriage in 2013, and was unaware of the High Court proceedings. The High Court record also showed advocates appearing and recall applications being pursued in his name without any vakalatnama from him or his authority. (¶¶ 17, 20, 21, 22, 23, 24)
- The daughter and son-in-law, assisted by several advocates in the Supreme Court and the High Court and by a notary, made brazen attempts to implicate respondent No.2, a witness in the Nitish Katara murder case, by filing false proceedings in another person's name on fabricated documents, thereby abusing the process of law. (¶¶ 25, 26)
- Creating or using false documents in court and filing proceedings in the name of a person who knows nothing of them are acts attracting offences under the Bharatiya Nyaya Sanhita, 2023 and a fraud on that person, on the person targeted and on the court. No court can allow itself to be used as an instrument of fraud. (¶ 29)
- Witnesses are vital to the justice system, yet they are frequently threatened, coerced or induced; despite the Witness Protection Scheme, 2018 approved in Mahendra Chawla, its implementation has been ineffective. (¶¶ 27, 28)
- An advocate who signs a vakalatnama or court papers, particularly in the Supreme Court, is presumed to act with full responsibility, and no legal professional is immune from prosecution for criminal misdeeds. Given the gravity of the case, investigation was transferred to the CBI to register a regular case, after a preliminary inquiry if needed, against everyone involved and report within two months. (¶¶ 30, 31, 32)
- The Registry notice of 30.12.2022 allows an Advocate-on-Record to mark appearances only of advocates actually appearing or authorised to appear and argue on that day of hearing; it does not permit marking advocates who are not so authorised. The AOR must give these names for each hearing and inform the Court Master of any change. (¶¶ 39, 40, 41, 42)
Result
Appeals disposed of; investigation handed to the CBI, which is to report within two months, with the original High Court and Supreme Court records sent to the Director, CBI in a sealed cover; copy of the judgment sent to the Bar Council of India and the Government of India; directions issued on marking of appearances; matter listed on 25.11.2024 for the CBI report.