Legal Professionals Not Immune From Prosecution For Criminal Misdeeds: SC

It is definitely most crucial to note that while ruling on a very significant legal point pertaining directly to advocates while delivering judgment in the 'fake' SLP case, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Bhagwan Singh vs State of UP in Special Leave Petition (Criminal) Diary No(s) 18885/2024 and cited in Neutral Citation No.: 2024 INSC 708 and so also cited in 2024 LiveLaw (SC) 722 that was pronounced most recently on 20-9-2024 in the exercise of its criminal appellate jurisdiction has been certainly most unequivocal in holding most commendably without mincing absolutely any words on liability of lawyers that no professional, much less a legal professional, is immune from prosecution for their criminal misdeed(s). It must be noted that while taking the most serious note of it, the Bench of Apex Court comprising of Hon'ble Ms Bela M Trivedi and Hon'ble Mr Satish Chandra Sharma was most unambiguous in holding very clearly, cogently, courageously and so also most convincingly that, "There is a great sanctity attached to the proceedings conducted in the court. Every Advocate putting his signatures on the Vakalatnamas and on the documents to be filed in the Courts, and every Advocate appearing for a party in the courts, particularly in the Supreme Court, the highest court of the country is presumed to have filed the proceedings and put his/her appearance with all sense of responsibility and seriousness. No professional much less legal professional, is immune from being prosecuted for his/her criminal misdeeds." Very rightly so!

To recall most briefly, we see that in this leading case the petitioner denied filing any special leave petition and feigned ignorance of advocates who claimed to represent him. It must be noted that the respondents, on the contrary, informed the Court that the order impugned in SLP put an end to criminal proceedings against the only witness in the high profile 2002 Nitish Katara murder case and the SLP was filed in an attempt to continue in the false case against him (without the petitioner's knowledge). We need to further pay attention that after doing a threadbare analysis of this leading case, the Bench of Supreme Court was of the unflinching view that the High Court and Supreme Court were sought to be taken for a ride, and the entire justice delivery system sought to be put at stake by respondent Nos. 3 and 4 as well as their associates and advocates who helped them in forging and fabricating the documents to be filed in the Courts, and to pursue false proceedings filed in the name of the petitioner without his knowledge, consent or authority.

While taking it most seriously, the Apex Court ordered the CBI to conduct a probe and register a regular case after holding preliminary inquiry if necessary to do so against all the persons found involved and responsible. Notably, the Apex Court pulled back no punches in remarking most seriously that in a democratic country governed by rule of law, citizens expect wrongdoers to be afraid of punishment. The Bench very rightly held that, "The wrongdoers must fear the law that they will be punished, the innocents must rest assured that they will not be, and the victims must be confident that they will get the justice. This is what a citizen of the democratic country like India, governed by Rule of Law would legitimately expect from the Courts. The Courts are called the 'Temple of Justice'…"

PREFACE

At the very outset, this notable and so also most upright judgment authored by the Bench of Apex Court comprising of Hon'ble Ms Bela M Trivedi and Hon'ble Mr Satish Chandra Sharma sets the ball in motion after condoning delay as stated in para 1 and after granting leave as stated in para 2 stating most straightforwardly in para 3 that, "While the finest of the legal minds and legal eagles on the Bench and in the Bar of the Supreme Court are busy developing the best of the jurisprudence and laying down the best of the laws for the country, there are certain sinister cabal of unscrupulous litigants and a coterie of their counsellors, who are always busy in taking undue advantage of the systemic lacunae and in misusing the process of law, in turn damaging the image of the Courts as also of the entire legal fraternity/legal profession. The huge quantum of work load in the Courts, limitations of the human agencies in manning the Justice Delivery System and the fertile minds of the unscrupulous litigants and their legal counsellors are some of the factors responsible for not allowing the Justice Delivery System to work as effectively and efficiently as it is expected to work."

While continuing in the same vein, the Bench then adds in para 4 that, "The wrongdoers must fear the law that they will be punished, the innocents must rest assured that they will not be, and the victims must be confident that they will get the justice. This is what a citizen of the democratic country like India, governed by Rule of Law would legitimately expect from the Courts. The Courts are called the 'Temple of Justice'. However, often brazen attempts are being made to abuse and misuse the process of law by committing frauds on Courts. This is one of such cases where such an attempt has been made to pollute the stream of justice. With this little Preface let us deal with the facts of the case."

PROCEEDINGS BEFORE THIS COURT

To put things in perspective, the Bench envisages in para 5 that, "The instant two appeals were sought to be filed in the name of the appellant- Bhagwan Singh. One Appeal is filed challenging the Judgment and Order dated 16.12.2019 passed by the High Court of Judicature at Allahabad in an Application under Section 482 No. 41533 of 2019, filed by the respondent no. 2 - Ajay Katara, whereby the High Court had allowed the said Application and quashed the entire proceedings in respect of the Supplementary Chargesheet No. 163A dated 05.12.2018 in Case No. 410 of 2014, arising out of the Case Crime No. 443 of 2013, under Sections 363, 366, 376 IPC at Police Station Sehaswan, District Budaun, pending in the Court of the Additional Chief Judicial Magistrate-II, Budaun. The other Appeal is filed challenging the order dated 02.04.2024 passed in Criminal Miscellaneous Recall Application No.3/2020, whereby the High Court had rejected the said application."

As it turned out, the Bench enunciates in para 6 that, "Vide the order dated 17.05.2024, this Court had issued Notice to the Respondent nos. 1 & 2 on the application seeking condonation of delay as well as on the SLPs, making it returnable after eight weeks. The Registry vide the office report dated 29.07.2024 submitted that a letter dated 09.07.2024 was received from Bhagwan Singh (in vernacular language) wherein it was stated that he had not filed any SLP before this Court and the same was falsely filed in his name. It was also stated in the said office report that an email dated 29.07.2024 was received from Mr. Rishi Kumar Singh Gautam, Advocate that he was appearing on behalf of the appellant- Bhagwan Singh."

As we see, the Bench then discloses in para 7 that, "When the matter was listed on 30.07.2024, Mr. Nikhil Majithia, learned advocate appearing along with the AOR Mr. Rishi Kumar Singh Gautam, drew the attention of the Court to the office report dated 29.07.2024 and the letter dated 09.07.2024 received by the office from the appellant-Bhagwan Singh and submitted that the appellant was personally present in the Court and was confirming the contents of his letter dated 09.07.2024. We, therefore called for the original papers from the Registry to verify the signature of Shri Bhagwan Singh on the 'Vakalatnama' filed in the SLP. One Mr. R.P.S. Yadav, an Advocate who was present in the Court on the said date stated that he had an instruction to appear on behalf of Mr. Anubhav, Advocate on Record, who had signed on the 'Vakalatnama' identifying and attesting the signature of Bhagwan Singh as the petitioner-appellant on the Vakalatnama. Since the AOR Mr. Anubhav was not present in the Court, the matter was adjourned to the next date i.e. 31.07.2024."

It is worth paying maximum attention that the Bench then lays bare about the key facts in para 20 stating that, "From the aforesaid affidavits of the concerned Parties and the Notary and the statements of the concerned Advocates recorded by the Courts in the orders, the following facts emerge: -

(i) The present SLPs (Appeals) proceedings in the name of Bhagwan Singh were filed by the Advocate on Record, Mr. Anubhav Yashwant Yadav, with his signatures at the end of the SLP memorandum and other papers. He also signed the certificate at the end of the SLP dated 19.04.2024 required to be filed in the prescribed form as per the Supreme Court Rules, 2013, along with the affidavit dated 24.04.2024 of Bhagwan Singh as notarized by the Notary Mr. A.N. Singh. The said Advocate on Record, Mr. Anubhav Yadav also submitted the Vakalatnama identifying and attesting the signatures of the appellant-petitioner- Mr. Bhagwan Singh. However, during the course of hearing, he had stated that - "though on Vakalatnama he had identified and attested the signature of the petitioner, that was not correct, and that he had received the Vakalatnama with the signature of the petitioner-Bhagwan Singh, from the Advocate Mr. R.P.S. Yadav who is present in the Court." The said statements have been recorded by the Court in the order dated 31.07.2024.

(ii) Though the Learned Advocate Mr. R.P.S. Yadav had stated on 30.07.2024 that the Vakalatnama was signed by the petitionerBhagwan Singh in his presence, on 31.07.2024, he changed his version and stated that he had received the Vakalatnama already signed by the petitioner-Bhagwan Singh from one lawyer named Karan Singh Yadav who is practicing in the Allahabad High Court.

(iii) Mr. Karan Singh Yadav, Advocate practicing at Allahabad High Court was directed to remain present before the Court on 09.08.2024 and he stated that he had received the papers of the case along with the signed Vakalatnama i.e with the signature of the petitioner- Bhagwan Singh from his client Sukhpal, son of Rishipal, who happened to be the son-in-law of Bhagwan Sing. He further stated that he had appeared before the High Court in Recall Application No.3/2020 filed on behalf of Ms. Rinki, daughter of Bhagwan Singh and wife of Sukhpal Singh seeking recall of the order dated 16.12.2019, and after the dismissal of the said application on 02.04.2024, he had asked Sukhpal to get the Vakalatnama with the signature of either Rinki or Bhagwan Singh. Thereafter, said Sukhpal gave him the papers along with the Vakalatnama signed in the name of Bhagwan Singh, which he handed over to the Advocate Mr. R.P.S. Yadav practicing in the Supreme Court.

(iv) The Notary Mr. A.N. Singh admitted in his affidavit that he had attested the affidavit dated 19.04.2024 of one Bhagwan Singh, on Mr. RPS Yadav, Advocate having identified the signature of Bhagwan Singh. Meaning thereby, the said affidavit of Mr. Bhagwan Singh was notarized by the Notary without Bhagwan Singh being present before him and the said affidavit was submitted before the Court along with the SLP memo.

(v) The Respondent No.3- Sukhpal kept on making inconsistent statements in the court as stated in the order dated 28.08.2024. He had made the statements that he and his wife Rinki met his fatherin-law, petitioner- Bhagwan Singh 3-4 years back at Budaun, Uttar Pradesh and at that time petitioner-Bhagwan Singh had handed over the signed Vakalatnama to his wife Rinki, which she handed over to the Advocate Mr. Karan Singh, advocate practicing in the High Court of Allahabad. In the affidavit dated 02.09.2024 filed by him he had stated that the first recall application bearing no. 3/2020 was filed by him with his affidavit as the witness, and Rinki had put her thumb impressions on the Vakalatnama. He further stated that on 28.11.2021, Bhagwan Singh gave him a signed Vakalatnama to file a fresh Recall Application bearing No. 7/2020 and 8/2021, which was filed by another Advocate at Allahabad. In March, 2024, he handed over the Vakalatnama to Karan Singh for arguing the Recall Application No. 3/2020 in the High Court. According to him, in April 2024 since Rinki wanted to file SLP before the Supreme Court, she gave a signed Vakalatnama to him (Sukhpal) which he gave to Advocate Mr. Karan Singh Yadav for filing further proceedings. He also stated that since Mr. Karan Singh Yadav was busy arguing a case, he put the signed Vakalatnama in the bag of Mr. Karan Singh Yadav and informed him by mobile phone.

(vi) On 09.09.2024, Ms. Rinki, daughter of Bhagwan Singh and wife of Sukhpal Singh stated that she used to talk to her father very often on mobile phone. She gave numbers of the phones from which she used to talk which have been recorded by the Court in the order. She further stated that 5-6 months back she and her husband Sukhpal had met her father who handed over the Vakalatnama signed by him to her. The said Vakalatnama was handed over by Mr. Sukhpal to Mr. Karan Singh, Advocate. Her husband, Mr. Sukhpal who was present in the Court supported the said statements made by his wife Rinki.

(vii) However, the appellant-petitioner Bhagwan Singh all throughout the proceedings maintained his stand and stated in his affidavit that he had never met his daughter Rinki or his son-in-law Sukhpal since 2013, nor he had any contact with his daughter telephonically or by any other means as stated in his affidavit he had not travelled to Allahabad since 2014 for any purpose. He also stated that he had neither filed the present SLP proceedings, nor was aware about the filing, pendency or disposal of the application under Section 482 No. 41533/2019 before the Allahabad High Court.

(viii) As transpiring from the affidavit filed by the Respondent No.2 Mr. Ajay Kataria that since he was a star witness in the famous Nitish Katara case, and on the basis of whose evidence the accused Vikas Yadav and Vishal Yadav, who happened to be the son and nephew of Mr. D. P. Yadav, Ex- Minister, and M.P. were convicted, he was falsely implicated in number of cases. This is one of such cases, filed in the name of Bhagwan Singh, at the instance of Respondent No.3 Sukhpal, Respondent No.2 Rinki, with the help of their Advocates appearing for them in the High Court and this Court."

Most damningly, the Bench observes in para 25 that, "From the aforesaid state of affairs, we are of the opinion that the Respondent No.3 Mr. Sukhpal, son of Rishipal and Respondent No.4 Ms. Rinki, wife of Sukhpal, with the able assistance of a battery of advocates in the Supreme Court namely AOR Mr. Anubhav Yashwant Yadav, Mr. R.P.S Yadav, Mr. Karan Singh Yadav along with the Advocate and notary Mr. A.N. Singh, and a battery of Advocates in the High Court namely Santosh Kumar Yadav, Jai Singh Yadav, Alok Kumar Yadav and Karan Singh Yadav and many other unknown persons had made brazen attempts to falsely implicate the Respondent No.2 Ajay Katara by filing false proceedings in the name of Bhagwan Singh in the High Court and Supreme Court, by filing false and fabricated documents. Though, the said Bhagwan Singh had never met any of the said Advocates nor had instructed any advocates to file the proceedings in the High Court or the Supreme Court and, though he had never met his daughter Rinki and son- in-law, Sukh Pal since the time they had eloped and married with each other in 2013, they with the help and assistance of the said Advocates had tried to misuse and abuse the process of law and malign the stream of justice."

What's more, the Bench notes in para 26 that, "It is also very pertinent to note that as stated earlier, the said Respondent no.2-Ajay Katara was the star witness in the famous Nitish Katara Murder Case and on the basis of his evidence along with the other evidence the accused in the said case namely Vikas Yadav and Vishal Yadav, (who happened to be the son and nephew of D.P. Yadav, Ex-Minister and Member of Parliament) were convicted and sentenced to imprisonment for life by the trial court. In the appeal, the High Court had confirmed the conviction and further ordered that the said two accused shall not be entitled to any remission till they have completed 25 years of actual sentence. The said judgment was also confirmed by the Supreme Court. Mr. Katara is made to suffer for being witness in the said case. As stated by him in the affidavit, he was subjected to continuous threats and still continues to be under pressure for having appeared as the witness. He has stated that before the said case, he had no case civil or criminal filed against him, and after the said case, he has been continuously targeted with a campaign of false and frivolous cases and named in around thirty-seven cases, including the present one at the behest of Yadav family and their associates. However, he has been cleared in 35 out of 37 cases."

While underscoring the significance of witnesses, the Bench propounds in para 27 that, "It would not be out of place to reiterate that the witnesses play a vital role in facilitating the court to arrive at a correct findings, particularly in criminal trials. As rightly said by Jereny Bentham, an English Philosopher and jurist, "the witnesses are the eyes and ears of justice." They are the backbone in the decision making process in the adversarial system prevalent in India. In the words of Whittaker Chambers, a witness is - "a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences." (Whittaker Chambers, WITNESS QUOTES (Washington DC, Regnery Gateway, 1952) p. 5). As very aptly said in a book on Witness Protection- "In search of truth, he plays that sacred role of the sun, which eliminates the darkness of ignorance and illuminates the face of justice, encircled by devils of humanity and compassion. (Witness Protection in Criminal Trial in India by Girish Abhyankar & Asawari Abhyankar)."

While lamenting on the pathetic condition of witnesses, the Bench laments in para 28 that, "However, the condition of witnesses in the Indian Legal System is very pathetic. The witnesses are threatened, coerced by using force and lured by monetary considerations, at the instances of those who are in power, their henchmen and hirelings, with a view to smother and stifle truth, and to make mockery of justice. Though the "Witness Protection Scheme, 2018" has been framed by the Central Government and approved by this Court in Mahendra Chawla vs. Union of India (2019) 14 SCC 615 there is hardly any effective implementation of the same."

More to the point, the Bench then points out in para 29 that, "To create or to assist creating false documents and to use them as genuine knowing them to be false in the Court proceedings, to falsely implicate somebody in the false proceedings filed in the name of the person who had no knowledge whatsoever about the same are the acts attributable to the offences punishable under the Bharatiya Nyaya Sanhita, 2023. They are also acts of frauds committed not only on the person sought to be falsely implicated and on the person in whose name such false proceedings are filed without his knowledge and consent, but is a fraud committed on the Courts. No Court can allow itself to be used as an instrument of fraud and no Court can allow its eyes to be closed to the fact that it is being used as an instrument of fraud. As held by this Court in V. Chandrasekaran & Anr. vs. Administrative Officer & Ors. 2012 (12) SCC 133, "The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court.""

Be it noted, the Bench then notes in para 30 that, "The matter assumes serious concern when the Advocates who are the officers of the Court are involved and when they actively participate in the ill-motivated litigations of the unscrupulous litigants, and assist them in misusing and abusing the process of law to achieve their ulterior purposes."

Most significantly, most commendably and so also most forthrightly, the Bench mandates in para 31 postulating that, "People repose immense faith in Judiciary, and the Bar being an integral part of the Justice delivery system, has been assigned a very crucial role for preserving the independence of justice and the very democratic set up of the country. The legal profession is perceived to be essentially a service oriented, noble profession and the lawyers are perceived to be very responsible officers of the court and an important adjunct of the administration of justice. In the process of overall depletion and erosion of ethical values and degradation of the professional ethics, the instances of professional misconduct are also on rise. There is a great sanctity attached to the proceedings conducted in the court. Every Advocate putting his signatures on the Vakalatnamas and on the documents to be filed in the Courts, and every Advocate appearing for a party in the courts, particularly in the Supreme Court, the highest court of the country is presumed to have filed the proceedings and put his/her appearance with all sense of responsibility and seriousness. No professional much less legal professional, is immuned from being prosecuted for his/her criminal misdeeds."

Equally significantly is what is then directed in para 32 by the Bench that, "In the extraordinary facts and circumstances, and considering the gravity and seriousness of the case, when the High Court and Supreme Court were sought to be taken for a ride and when the entire justice delivery system was sought to be put to stake, by the respondent no. 3 Mr. Sukhpal, the respondent no. 4 Ms. Rinki, and their concerned associates and the Advocates, who helped them in forging and fabricating the documents to be filed in the High Court and Supreme Court, and to pursue the false proceedings filed in the name of Bhagwan Singh without his knowledge, consent or authority, we deem it appropriate to hand over the investigation of the case to the CBI. The CBI shall register the regular case, after holding preliminary inquiry if necessary to do so, against all the persons found involved and responsible, and shall investigate all the links leading to the commission of the alleged crimes and fraud on court. The Director, CBI is directed to do the needful in this regard and to submit the report to this court within two months. The office is directed to hand over Original Record of the Application under Section 482 No.41533/2019 and Recall Applications 3/2020, 7/2020 and 8/2021 and the Original Record of the instant Appeals to the Director, CBI in a sealed cover, after retaining the certified copies of all the records of the said proceedings and instant appeals."

WAY FORWARD TO CORRECTIVE MEASURES

Adding more to it, the Bench further hastens to add in para 33 stating that, "This is the opportune time to remind the Advocates about the Standard of Professional misconduct and Etiquettes as contained in Chapter II Part VI of the Bar Council of India Rules. As stated in the Preamble thereof, an Advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity, may still be improper for an advocate. Though an Advocate is expected to fearlessly uphold the interests of his client, his conduct must conform to the Rules of Conduct and Etiquettes laid down in the said Chapter, both in letter and in spirit."

In this context, it is worth noting that the Bench then notes in para 34 that, "The role and the duty of the Advocates particularly Advocates-onRecord are contained in Order IV of the Supreme Court Rules, 2013. The relevant part of Rule 7 Order IV of the said Rules reads as under:

"7. (a). ……….

(b) (i) Where the vakalatnama is executed in the presence of the Advocate-on-Record, he shall certify that it was executed in his presence.

(ii) Where the Advocate-on-Record merely accepts the vakalatnama which is already duly executed in the presence of a Notary or an advocate, he shall make an endorsement thereon that he has satisfied himself about the due execution of the vakalatnama.""

In addition, the Bench directs in para 35 that, "The Special Leave Petitions civil or criminal have to be filed in the Supreme Court in compliance with the Rules contained in Order XXI and XXII of the said Rules."

While citing the most recent and relevant case law in this regard, the Bench observes in para 36 that, "As observed by this Court in Saumya Chaurasia vs. Directorate of Enforcement (2024) 6 SCC 401 -

"13. It cannot be gainsaid that every party approaching the court seeking justice is expected to make full and correct disclosure of material facts and that every advocate being an officer of the court, though appearing for a particular party, is expected to assist the court fairly in carrying out its function to administer the justice. It hardly needs to be emphasised that a very high standard of professionalism and legal acumen is expected from the advocates particularly designated senior advocates appearing in the highest court of the country so that their professionalism may be followed and emulated by the advocates practising in the High Courts and the District Courts. Though it is true that the advocates would settle the pleadings and argue in the courts on instructions given by their clients, however their duty to diligently verify the facts from the record of the case, using their legal acumen for which they are engaged, cannot be obliviated.""

CONCLUSION

It would be worthwhile to note that the Bench notes in para 38 that, "Having recorded above, the Registry is directed to send a copy of the order to the Bar Council of India and to the Government of India for necessary perusal and action as may be deemed necessary."

Finally, the Bench then concludes by holding in para 43 that, "The Appeals stand disposed of in terms of this Order. However, the same be listed for the submission of the Report by the CBI on 25th November, 2024."

To conclude, I must say that due to paucity of space, I could not cover many brilliant points and observations of this most remarkable judgment. It is my most strong belief for first time in my life that this most commendable judgment delivered by the Supreme Court deserves to be read by all the advocates and those who aspire to be advocates in its entirety directly from the judgment itself so that nothing important is missed out on such a relevant issue that directly concerns and has palpably most significant bearing on advocates themselves! No denying or disputing it!