IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 16/12/2003
Coram
The Honourable Mr.Justice M. KARPAGAVINAYAGAM
CRIMINAL ORIGINAL PETITION No.30168 of 2003
K.V.T. @ Thirupathiaiah ..Petitioner(A2)
-Vs-
State by Inspector of Police,
E.4 Maduravoil Police Station,
Chengai East District. ..Respondent
Petition for anticipatory bail filed under Section 438 of Criminal
Procedure Code.
For Petitioner : Mr. V. Gopinath, S.C. for
M/s. C.Christopher and
D.Saravanan
: Mr.I.Subramanian, P.P.
Amicus Curiae.
For Respondent : Mr.V. Jayaprakash Narayanan,G.A.
:O R D E R
K.V.T. @ Thirupathiaiah, the petitioner herein seeking for
anticipatory bail in respect of the case registered in Crime No.792 of 2003 on
the file of the Inspector of Police, E.4, Maduravoil Police Station, Chengai
East District, for the offences under Sections 147,148,341,4 47,506(ii) I.P.C.
read with Section 25 of the Arms Act, has filed this application in
Crl.O.P.No.30168 of 2003.
2. This application was filed on 3.9.2003. The petitioner has
engaged Mr.V.Gopinath, the senior counsel through the counsel on record
M/s.C.Christopher and D.Saravanan.
3. Even prior to this, the very same petitioner filed an application
for anticipatory bail in Crl.O.P.No.29502 of 2003 in respect of the same case
on 27.8.2003 through the counsel one Mr.K.Varadha Raja and the same is
pending.
4. When the matter came up before this Court after notice for final
disposal, Mr.V.Gopinath, the learned senior counsel appearing in
Crl.O.P.No.30168 of 2003, would point out that the petitioner Thirupathiaiah
has never engaged the said Mr.Varadha Raja, the learned counsel and he has not
given instruction to him to file an application for anticipatory bail and as
such, the application in Crl.O.P.no.29502 of 20 03 has been filed without any
authorisation from the petitioner.
5. To this effect, Thirupathiaiah, the petitioner has filed an
affidavit stating that he had not instructed anybody to file anticipatory bail
petition on his behalf and as such, petition in Crl.O.P.No.2950 2 of 2003 was
filed by the said Varadha Raja, the learned counsel without his authorisation.
It is also pointed out in this affidavit that the particulars about the
address of the petitioner and his father’s name are wrongly given in
Crl.O.P.No.29502 of 2003. In the petition in Crl.O.P.No.29502 of 2003 filed
by the counsel Mr.Varadha Raja, it is stated that the petitioner is K.V.T. @
Thirupathi Ayya, S/o. Karuppiah, No.5, Gandhi Road, Villivakkam, Chennai,
whereas the actual particulars relating to the address and father’s name are
K.V.T. @ Thirupathiaiah, S/o. K.Venkatasubbiah, No.100, 15th Cross Street,
Senthil Nagar, Kolathur, Chennai-99. These particulars are correctly given in
the complaint which has been given by the defacto complainant against him as
well as in this petition. He has also filed a separate affidavit
authorising Mr.V.Gopinath, the learned senior counsel to represent
M/s.C.Christopher and D.Saravanan to appear for him.
6. When the matter was taken up by this Court, the said Mr.Varadha
Raja, who claimed himself as the counsel for the petitioner in
Crl.O.P.No.29502 of 2003 was not present. Then, notice was ordered to him.
Despite that, he did not appear. Therefore his Court heard the arguments of
Mr.V.Gopinath, the learned senior counsel in Crl.O.P.No.30 168 of 2003 for the
petitioner and also the reply by the Government Advocate appearing for the
respondent.
7. According to prosecution, one Krishnan, the Power of Attorney
Agent of one Abdul Hadhi Basha has been looking after his lands in the village
and one Abdul Haque is having lands adjoining the lands of the said Abdul
Hadhi Basha and when the said Abdul Haque disturbed the possession of Abdul
Hadhi Basha, Krishnan, his Power Agent gave a complaint to the police, but no
action was taken and therefore, he filed a suit in O.S.No.197 of 2000 against
the neighbouring land owner Mr. Abdul Haque and obtained an interim
injunction order in I.A.No.740 of 2000 on the file of the District Munsif
Court, Poonamallee. On 5.7.2 003 at about 6.00 p.m., when Krishnan, the Power
Agent of Abdul Hadhi Basha was proceeding to the above said land,
Thirupathiaiah, the petitioner and other accused, the supporters of the said
Abdul Haque, came to the land and questioned the Power Agent and picked up
quarrel with him for having resorted to initiation of the proceedings before
the police as well as before the civil Court. One Ranganathan, M.L.A.,
Purasawalkam Constituency (A3) instigated the petitioner to attack him and at
his instance, the petitioner with a revolver aimed at him and ultimately, shot
at the air. With referen ce to this incident, Krishnan lodged a complaint
before the police. But, no action was taken. Therefore, Krishnan filed
Crl.O.P.No.26730 of 2003 before this Court for giving suitable direction to
the police. Accordingly, this Court by the order dated 13.8.2003, directed
the respondent police to register his complaint and file a final report. In
pursuance of this order, the case was registered against the petitioner and
others in Crime No.792 of 2003 by the respondent police for the offences under
Sections 147, 148, 341, 447, 506(ii) I.P.C. read with Section 25 of the Arms
Act. At that stage, the petitioner apprehending arrest in respect of the
above offences, filed this application in Crl.O.P.No.30168 of 2003.
8. According to Mr.Gopinath, the learned senior counsel, a false
complaint had been given by the complainant against the petitioner and others
due to rivalry and actually, no such occurrence had taken place and as the
petitioner is a respectable person and dealing with Real Estate business, he
seeks anticipatory bail, otherwise if arrested, he will be put to shame and
disgrace.
9. This Court has heard the learned Government Advocate and gone
through the case diary.
10. It is to be noted in this context that co-accused Ranganathan has
already been granted anticipatory bail subject to some conditions. The
counsel for the petitioner would submit that the petitioner is prepared to
abide by any condition in the event of grant of anticipatory bail.
11. During the pendency of enquiry in this application, this Court by
the order dated 29.9.2003 directed that the petitioner shall not be arrested
pending enquiry in this petition. Further, this Court passed an order on
4.9.2003 directing the petitioner to hand over the revolver which is alleged
to have been used by him to the police within two days. In the very same
order, Mr.K.Varadha Raja, the learned counsel in Crl.O.P.No.29502 of 2003 who
claimed that he has been engaged by the petitioner, was directed to appear
before this Court to verify as to whether such an instruction had been given
by the petitioner to him as declared by him in his memo of appearance. In
pursuance of the above direction, the petitioner handed over his revolver
bearing No.A-87064, 32 Bore revolver make: Webly & Scott by England, and
bearing licence No.4/4/V-4 renewed from 01.01.2003 to 31.12.2005, to the
Inspector of Police, E4 Maduravoil Police Station. To this effect, the memo
by the Inspector of Police dated 9.9.2003 has been filed before this Court.
However, Mr.K.Varadha Raja, the learned counsel in Crl.O.P.No.29502 of 2003
did not choose to appear before this Court.
12. In view of the fact that the occurrence took place on 5.7.2003,
that the co-accused has already been granted anticipatory bail and that the
revolver has been handed over to the police, this Court is of the view that
the petitioner also could be granted anticipatory bail with stringent
conditions in the light of the serious allegation made against him.
13. In the result, the petitioner shall be released on bail, in the
event of arrest, on his depositing a cash security of Rs.10,000/- ( Rupees Ten
thousand) before the Court of Judicial Magistrate-II, Poonamallee and on his
executing a bond for Rs.10,000/- (Rupees Ten thousand) with one surety for a
like sum to the satisfaction of the above said Court and on further condition
that he shall report to the respondent police daily at 10.00 a.m. until
further orders. The petitioner shall surrender within two weeks from the date
of receipt of this order, or else, this order would stand automatically
cancelled.
14. Before parting with this case, this Court is constrained to deal
with the sordid feature which is noticed in this case relating to the filing
of the application in Crl.O.P.No.29502 of 2003 by one K. Varadha Raja, the
counsel on behalf of the petitioner, even without getting any instruction from
the petitioner.
15. In this case, the occurrence had taken place on 5.7.2003.
Initially, the complaint given by Krishnan, the Power Agent of Abdul Hadhi
Basha was not entertained by the police. Subsequently, as stated earlier, by
the order dated 13.8.2003 of this Court, the respondent registered the case.
Within a few days, Mr.K.Varadha Raja, the counsel claiming himself that he has
been instructed to appear on behalf of the petitioner, filed a petition for
anticipatory bail before this Court in Crl.O.P.No.29502 of 2003 on 27.8.2003
along with the memo of appearance. Actually, no instruction had been given to
him by the petitioner, who has filed an affidavit to the said effect.
16. Without the knowledge that another application had already been
filed on his behalf in Crl.O.P.No.29502 of 2003 and the same is pending, the
petitioner filed Crl.O.P.No.30168 of 2003 by engaging the counsel M/s.
C.Christopher and D.Saravanan, who in turn engaged Mr.V. Gopinath, the senior
counsel to argue on behalf of the petitioner Thirupathiaiah. This application
was filed on 3.9.2003. Only at that stage, the petitioner came to know that
on his behalf, an application has been filed earlier in Crl.O.P.No.29502 of
2003 without getting any instruction from him. Therefore, he filed an
affidavit in Crl.O.P.No.29502 of 2003 stating that he has not instructed
anybody to file anticipatory bail petition and the said anticipatory bail
petition has been filed by the same advocate with an ulterior motive without
his instruction by giving different father’s name and address.
17. In view of such development, as indicated above, this Court was
constrained to issue notice to the said Varadha Raja, the counsel, who claims
to be a member of MHAA. Despite adjourning the matter for several hearings,
the said K.Varadha Raja has not chosen to appear before this Court, which
conduct on the part of the counsel would show that the statement of the
petitioner that he has not given any instruction to him is true. Further,
counsel address was not furnished in the memo and his Enrollment Number also
has not been given.
18. It is quite unfortunate to notice in recent times that the
anticipatory bail applications have come to be filed by different advocates in
respect of one and the same accused in the same crime number both in the
Sessions Court as well as in the High Court.
19. Therefore, this Court asked Mr.V.Gopinath, the learned senior
counsel to give suggestion to avoid this anomalous situation in future.
Mr.I.Subramanian, the learned Public Prosecutor also was appointed as Amicus
Curiae to give suggestion to this Court so that suitable direction could be
given to the Registry of this Court as well as to the Sessions Courts. Both
of them made submissions at length and filed notes of submissions.
20. This Court on earlier occasion would come across a case where an
accused filed an application for anticipatory bail before the this Court and
the same was dismissed. After dismissal, he engaged counsel at Madurai to
file an application for anticipatory bail before the Sessions Court, Madurai
without informing about the dismissal of the application in the High Court.
The said application was dismissed by the Madurai Sessions Court on merits.
The accused moved another application through another counsel before the High
Court without showing the dismissal of the earlier applications both in the
High Court and in the Sessions Court. The same was again dismissed on merits.
Even thereafter, the petitioner engaged one other counsel before the Sessions
Court at Madurai and filed an application for anticipatory bail without the
earlier details. This time, the accused was able to get anticipatory bail
before the Madurai Sessions Court subject to some conditions. Even though
anticipatory bail had been obtained by him from the Madurai Sessions Court,
another application has been moved before the High Court without knowing about
the anticipatory bail order of the Sessions Court. When the matter came up
before the High Court, neither the counsel for the accused nor the prosecutor
informed about the grant of anticipatory bail by the Sessions Court. However,
having no knowledge about that, this time, the High Court granted anticipatory
bail subject to some condition.
21. The most funniest part is that thereafter, even though the
petitioner was able to get anticipatory bail both in the Sessions Court and in
the High Court, without knowing the same, one other counsel on behalf of the
petitioner filed an application again for anticipatory bail before this Court
in respect of the very same case. Only at that stage, this Court was able to
find out the sorry state of affairs where the petitioner even after getting
anticipatory bail both from the Sessions Court and the High Court, again moved
the High Court by engaging different counsel. In that matter, ultimately,
this Court found that the police officers have not given proper instruction to
the Prosecutor concerned and consequently, this anomalous situation was
created wherein the Sessions Court granted anticipatory bail without knowing
the order of the High Court dismissing the anticipatory bail application
earlier or the Sessions Court granting bail without knowing that already
anticipatory bail granted by the High Court. This Court was constrained to
conduct enquiry in that matter and summoned the persons concerned and
ultimately, this Court imposed heavy costs on the accused concerned.
22. These occasions had arisen due to the only reason that
instructions have been given separately to different counsel both by the
friends and relatives of the accused as well as the accused and on those
instructions, the different counsel would rush to the Court to file separate
applications in different fora. This situation would often arise because of
the fact that there is no opportunity for the counsel to have a direct contact
with the client in such matters.
23. It is quite obvious that such an unsavory situation arises in
matters of anticipatory bail because of the fact that the Criminal Rules of
Practice does not provide for vakalat but merely provides for a Memo of
appearance to be filed on behalf of the accused persons, be it before the
lower Courts or in the High Court for that matter. Ultimately, the different
counsel, who are being misled by the friends and relatives of the accused and
the accused, on the basis of their instruction, have filed different
applications before different fora simultaneously, only by filing of memo of
appearance as nobody insists for vakalat to be obtained from the accused. So,
in order to avoid such anomalies, the present endeavour is made detailing the
relevant provisions of the Criminal Rules of Practice and suggesting ways and
means to remove such ugly picture in future.
24. The Criminal Rules of Practice and Orders are framed and issued
from time to time by the Government and the High Court in exercise of the
powers conferred by Article 227 of the Constitution of India. The preamble to
the Criminal Rules of Practice, Madras would however state that the High Court
makes the rules and orders for the guidance of Criminal Courts and the High
Court.
25. Rule 29(28) of the Rules of Practice provides as under:
“Pleader to file vakalatnama for prosecution and memo of appearance
for defence.— (1) Every Pleader, as defined in Section 4(r) of the Code
other than an Advocate or a Public Prosecutor, appearing for the prosecution
in any criminal proceeding other than a Criminal Appeal shall file in court a
vakalatnama from his client authorizing him so to appear. In all Criminal
Appeals, such pleader may file a memorandum of appearance instead of a
vakalat. Every such pleader defending an accused person and every Advocate
appearing in any criminal proceedings in any Court shall be required to file a
memorandum of appearance containing a declaration that he has been duly
instructed to appear by, or on behalf of, the party, whom he claims to
represent.
In all other cases, a vakalat is required.”
26. Thus, Rule No.29(28) of the Criminal Rules of Practice does not
contemplate filing of vakalat and as per the rule every Advocate appearing in
any court on behalf of accused shall be required to file a memorandum of
appearance containing declaration that he has been fully instructed by, or, on
behalf of the party, whom he claims to represent.
27. Rule 247 (234) provides that the rules and orders framed and
issued by the High Court shall govern the practice of the High Court on the
appellate side to the extent to which they are applicable. Apart from the
aforesaid two provisions, the Criminal Rules of Practice does not lay down any
other guidance or criteria in the matter.
28. In the case reported in 1988 L.W. (Crl.) 185, the Madras High
Court had occasion to consider the application of the Criminal Rules of
Practice and with reference to the Rule 29(1), it had observed that in the
context of the specific provision contained therein, proceedings for
maintenance even though they are in the nature of criminal proceedings, a memo
of appearance would suffice for defending a husband/respondent in the above
proceedings.
29. It has been held in MANIKONDA LINGAYYA v. EMPEROR (1924 The
Madras Weekly Notes 51) that a memorandum of appearance is sufficient for the
valid presentation a criminal appeal and no vakalat is necessary for the same.
30. Similarly, in the bail applications also, this Court would come
across cases where the bail applications are being filed through memo of
appearance by the different counsel for the same accused even without getting
instruction directly from the accused who is in prison.
31. This Court would recall one shocking incident. In one case, the
complainant party himself had arranged a counsel to file a bail application on
behalf of the accused who was in prison against whom the complainant party had
a revengeful grudge and after getting the bail application ordered, the
complainant party arranged for sureties and furnished the same and in
pursuance of the bail order of the Judicial Magistrate after accepting the
sureties, the accused person who had not known about the bail application and
the bail order, was released from the jail and when he came out of the jail,
he was murdered by the other party. In the light of these situations,
question arises, how to prevent these awkward and anomalous situations?
32. As pointed out in the Criminal Rules of Practice and in 1924
Madras Weekly Notes page 51(supra), this Court is not inclined to insist for
vakalat as vakalat requires affixure of stamp. Therefore, it would be better
to insist for the filing of memo of appearance with signature of every accused
authorising the counsel to appear on his behalf and the same must be attested
by an Advocate or Notary Public and the same shall be identified by the
counsel appearing for the accused in the case of Anticipatory bail. Further,
it is to be noted that in the memo of appearance, the counsel should give the
Enrollment number as well as the detailed address so that the Court could
contact the counsel for further clarification. Similarly, in the bail
application, the memo of appearance with signature of accused attested by
Prison authorities can be insisted.
33. In T.D.JOSEPH v. SUNIL AND OTHERS (1995(2) L.W.441), a Division
Bench of this Court, while dealing with anticipatory bail application,
emphasized that either the Sessions Court or the High Court while granting
anticipatory bail, must be satisfied that the person who seeks relief was
within its jurisdiction and this satisfaction cannot merely arise on the basis
of some address given in the cause title of the petition even without a
supporting affidavit and there must be materials to show to the court to
satisfy its conscience that the person concerned was certainly within its
jurisdiction.
34. Therefore, the following directions are being issued to the
Registry of this Court as well as to the other Courts in regard to
entertainment of the bail applications as well as the anticipatory bail
applications:
(1) In the case of applications seeking for anticipatory bail, the
Office should insist that the memo of appearance should contain the signature
of every accused and the same must be attested by an Advocate or a Notary
Public and also to be identified by the counsel appearing for the accused.
(2) In the case of bail applications where the accused is in judicial
remand, it shall be insisted that the memo of appearance should contain the
signature of the accused attested by the Prison Superintendent or Jailor. It
would be desirable for the Prison Superintendents to forward such memo of
appearance signed by the accused, duly attested by them, to the Advocates or
the near relatives of the accused without any delay whatsoever.
(3) In the anticipatory bail application, as laid down by the Division
Bench of this Court in 1995(2) L.W. (Crl.) 441, the Office should insist for
the clear particulars about the address of the person who seeks for
anticipatory bail to verify whether he was within its jurisdiction either with
supporting affidavit or some other materials and also the address particulars
of the advocate as well as his Bar Council Enrollment Number.
35. These directions are issued subject to the approval of My Lord
the Hon’ble The Chief Justice. Therefore, the Registry is directed to place
the papers before My Lord The Hon’ble The Chief Justice for approval and for
issuing administrative directions to the courts concerned.
36. This Court records its full appreciation for the services
rendered by Mr.I.Subramanian, the learned Public Prosecutor (Amicus Curiae)
and Mr.V.Gopinath, the learned senior counsel in this matter.
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