Whether An advocate can be prosecuted for impersonation of surety?
Looking at the offence alleged, it is found that cognizance has been taken under Sections 419, 468, 471/34, IPC. Section 419, IPC states about punishment for cheating by impersonation. Even if the allegation made in the charge-sheet is accepted to the effect that some person impersonated the surety, and signed the bail bond and the affidavit, which were identified by thepetitioner No. 1 representing the accused as counsel, it cannot be said for a moment that he himself impersonated any one of the sureties. It transpires from the record that the case was looked after by the Advocate's Clerk, who after disclosure of the fact that bail bond executor has impersonated himself, immediately brought the said fact to the notice of the petitioner No. 1, who in turn filed a memo and affidavit bringing the said fact to the notice of the Court and as such, the Court has accepted the said affidavit and memo and allowed the accused Sanatan Patra to go on bail by executing fresh bail bond. Therefore, it cannot be said that the petitioners, who are the counsel for the accused persons, intentionally and knowing it fully well that the security was impersonated and identified him as genuine person in the bail bond. In coming to the aforesaid conclusion, this Court has referred to the decision of the apex Court in Hiralal Jain v. Delhi Administration,MANU/SC/0134/1972 : AIR 1972 SC 2598, wherein an Advocate was engaged by some persons for identifying them as claimants in an application made on their behalf to claim certain land acquisition compensation amount and the advocate believing the statement of the claimants, as true, filed his vakalatnama agreeing to act on their behalf and there was no evidence to show prior knowledge on the part of the advocate that the claimants were not the real persons entitled to claim the amount and no concert between the former and the latter was brought on record and it was, therefore, held that there was no prima facie evidence to commit the advocate for offence under Sections 120B read with 419, 420, 511 and 467 read with 471, IPC.
6. Considering the aforesaid position of law as laid down by this Court as well as the apex Court, in the case at hand since there is no allegation that the petitioners have prior knowledge of impersonation and knowing it fully well that Manmath Nayak was not the real person, identified him in bail bond and the affidavit. Therefore, even if the allegations made in the FIR are fully correct, yet, there is no prima facie material against the petitioners to connect them with the offence under Sections 419, IPC.
IN THE HIGH COURT OF ORISSA
CRLMC No. 914 of 2003
Decided On: 20.09.2013
Appellants: Asit Kumar Behera and Another
Vs.
Respondent: State of Orissa
Vs.
Respondent: State of Orissa
Hon'ble Judges/Coram:B.R. Sarangi, J.
Citation: 116(2013)CLT1120, 2013(II)OLR827,2014(2) crimes433 orissa
