It is most significant to note that the Bombay High Court in a most remarkable, robust, rational and recent judgment titled Hiral Chandrakant Jadhav vs The State of Maharashtra in Anticipatory Bail Application No. 3699 of 2023 and cited in Neutral Citation No.: 2024:BHC-AS:406 that was pronounced as recently as on January 3, 2024 in the exercise of its criminal appellate jurisdiction minced just no words to hold unequivocally that no words are sufficient to deprecate the practice adopted by the applicant being an advocate having relationship with the litigant based on trust. It must be mentioned here that in a most shocking turn of events, it was seen that an advocate from Mumbai seeking anticipatory bail found herself on the wrong side of the law after being accused of forgery and deception in connection with a bail application. The case registered at Dahisar Police Station under Sections 420, 465, 467, 468, 471 and subsequently also adding Section 466 of the IPC has taken a serious turn thus denying the applicant any leniency from the court.
It must be noted that the accused advocate whose name has not been disclosed is alleged to have promised the bail of a woman’s husband charged under Section 302 of the IPC. The complainant who had sought legal assistance asserted that she had paid a huge substantial fee of Rs 65,000 to the advocate who had assured her that the bail application was successful. But subsequent investigations disclosed a web of deception and court cited the clear evidence of the forged documents and the advocate’s persistent attempts to deliberately deceive the complainant.
Of course, there can be just no denying that this leading case definitely serves as a stark reminder of the potential importance of trust and integrity that are imbued within the legal system and the severe consequences that the legal professionals may face when those principles are compromised. We thus see that the applicant advocate’s petition for leniency to the Bombay High Court thus stood dismissed who would now have to accordingly face the custodial interrogation. Very rightly so!
At the very outset, this learned, laudable, landmark, logical and latest judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Sarang V Kotwal of Bombay High Court sets the ball in motion by first and foremost putting forth in para 1 that, “The Applicant is seeking anticipatory bail in connection with C.R.No.948/2023 dated 21.10.2023 registered at Dahisar Police Station, Mumbai under Sections 420, 465, 467, 468, 471 of the IPC. Subsequently, Section 466 of IPC is added.”
To put things in perspective, the Bench while elaborating on the facts of the case envisages in para 2 that, “The offence is extremely serious. The Applicant is an Advocate. The first informant had approached her for preferring an application for bail for her husband, who was arrested by the Dahisar police in connection with their C.R. No.927/2021. The main offence was under Section 302 of IPC against the informant’s husband. The present FIR mentions that the Applicant had assured the informant that she would get bail of her husband and for that purpose had asked Rs.65,000/- as her fees. In August, 2022, the informant paid her Rs.65,000/-. After that on 11.8.2022, the Applicant preferred the bail application. On 28.10.2022 the Applicant called the informant telephonically and informed her that the informant’s husband was granted bail by the Presiding Officer at Dindoshi Court for Rs.25,000/-. The first informant was told the name of the Presiding Officer. The Applicant called the informant to High Court for paying Rs.25,000/-. The informant and her relatives came to High Court. They gave Rs.25,000/- to the Applicant. The Applicant handed over a sealed brown-paper envelope. The Applicant told them that the envelope contained bail order and a receipt for Rs.25,000/-. She told them to give that envelope to the officers of Thane Prison.”
More revealingly, the Bench then discloses in para 3 that, “Immediately on 29.10.2022, at about 9.00 a.m., the informant and her relative went to Thane Prison and put that envelope in the box meant for depositing the bail orders. Till about 3.00 p.m. on that day, the informant did not get any information about her husband. Therefore, she made further enquiries. At that time, the officers from Thane Prison told her that the envelope did not contain the receipt for Rs.25,000/- and the documents were incomplete, therefore, her husband could not be released on bail. The documents were returned to her. The informant looked at those documents and found a copy of the order passed by the Presiding Officer i.e. the Additional Sessions Judge at Dindoshi; but the envelope did not contain the receipt for Rs.25,000/-. The informant contacted the Applicant but she gave evasive answers.”
Do note, the Bench notes in para 4 that, “On 31.10.2022, the informant went to the Applicant’s office. The Applicant told them that the documents were proper but because of the mistake of the officers from the jail, the informant’s husband was not released. The Applicant again gave another envelope and asked them to deposit it in the same box. On this occasion as well, it was not acted upon and the documents were returned.”
As we see, the Bench then discloses in para 5 that, “Thereafter the informant met the Applicant in the Court of Session at Dindoshi. Again the Applicant gave a photocopy of the bail order and a copy of the receipt of Rs.25,000/-. On 7.11.2022, again the informant went to Thane Central Prison but this time also the informant’s husband was not released on bail. The Applicant told the informant that somebody had complained against her husband and, therefore, he was not being released on bail. The informant got suspicious and checked the Portal of E-Courts. She did not find the bail order. She went to the Registry of Dindoshi Sessions Court. She was told that no such documents, viz., the bail order and the receipt were issued from their department. The informant realized that she was cheated. She confronted the Applicant. At that time, the Applicant tried to scare her by telling that the witnesses of that particular case had complained against the informant’s family. The informant was satisfied that the Applicant was playing mischief and she had cheated the informant, therefore, she lodged this FIR. The investigation was carried out. The Applicant is apprehending her arrest.”
Needless to say, the Bench then states in para 6 that, “Heard Shri Shailesh Kharat, learned counsel for the Applicant and Smt Sharmila Kaushik, learned APP for the Respondent-State.”
On the one hand, the Bench mentions in para 7 that, “Learned counsel for the Applicant submitted that the document in question i.e. the purported bail order was not acted upon and, therefore, no offence is made out. He submitted that there was difference between the ‘intent to defraud’ and ‘intent to deceive’. There was neither any wrongful gain to anyone nor any wrongful loss to another. It cannot be said that the Applicant had acted dishonestly. He submitted that, there was nothing to show that the Applicant had acted ‘dishonestly’ or ‘fraudulently’. Therefore, the offence under Section 465 of IPC and all other aggravated forms of the offence of forgery are not attracted in this case. Learned counsel relied on the judgment of the Hon’ble Supreme Court in the case of Jibrial Diwan Vs. State of Maharashtra as reported in (1997) 6 SCC 499 to support his contention to this effect.”
On the other hand, the Bench then also specifies in para 8 that, “Learned APP strongly opposed these submissions. She produced the papers of investigation carried out so far. The investigation papers include a copy of the bail order given by the Applicant to the first informant which was a forged bail order. Said bail order was purportedly passed on 22.10.2022 which mentions the Applicant’s name as the Advocate for the informant’s husband Ishwar Naidu. That order was found to be forged. The Presiding Officer named in that order had sent explanation to the Principal District Judge, Sessions Court, Dindoshi clearly stating that the said order was not passed by him. In fact, the said bail application was decided by another Additional Sessions Judge on 7.2.2023 and the application was rejected. The order dated 7.2.2023 also mentions the name of the present Applicant as the Advocate for the said accused Ishwar Naidu (informant’s husband).”
Most damningly, the Bench while taking potshots minces just no words to observe in para 9 that, “Thus, all along, the Applicant was very much aware that the informant’s husband’s bail application was not allowed. It was ultimately rejected on 7.2.2023. But, even prior to that no order was passed granting bail to the informant’s husband. Inspite of that, on multiple occasions, the Applicant knowingly gave forged order of bail regarding the informant’s husband. There was a reference to the receipt of Rs.25,000/- as well. Both these documents are forged documents beyond reasonable doubt even at this stage.”
Briefly stated, the Bench states in para 10 that, “I am strongly disagreeing with the submissions made by learned counsel for the Applicant that there was no ‘dishonest intention’ or ‘fraudulent intention’ on the part of the Applicant. In fact, her act cannot be described in any other manner but ‘dishonest’ and ‘fraudulent’. The investigating agency has now applied Section 466 of IPC as well.”
Most forthrightly, the Bench propounds in para 11 that, “I do not agree with the learned counsel for the Applicant that the act of the Applicant has not caused any harm to any person. The facts show that the Applicant had taken substantial amount from the informant. Though learned counsel submitted that the said amount was subsequently returned, it does not wash out the offence committed by the Applicant. The informant could have pursued the bail application of her husband in accordance with law. Due to the acts of the Applicant, the informant had lost precious substantial period. She was kept in the dark about the fate of the bail application preferred before the Sessions Court at Dindoshi. The informant and her family has suffered immense mental trauma.”
It is worth noting that the Bench notes in para 12 that, “The ingredients of all the offences mentioned in the FIR, including Section 420 of IPC, are clearly made out. This offence does not only cause harm to the victim in this case, but, it is also fundamentally detrimental to the entire legal system. This kind of offence corrodes the faith which the public has in the entire system.”
Most significantly, the Bench minces just no words to mandate in para 13 that, “No leniency whatsoever can be shown to the Applicant. No words are sufficient to deprecate the practice adopted by the Applicant, being an Advocate having relationship with the litigant based on trust. This is not a case where any kind of leniency can be shown to the Applicant at this stage. Her custodial interrogation is necessary to find out her accomplices. The manner in which the offence is committed with confidence shows, there is a strong possibility that this may not be an isolated instance. To unearth such similar instances, her custodial interrogation is necessary.”
Finally, the Bench then concludes by holding in para 14 that, “The Application is accordingly dismissed.”
In sum, we thus see that the Bombay High Court has taken a very strict view even when the advocates are concerned and has displayed zero tolerance as we see in this leading case. So there can be thus no gainsaying that the advocates have to be always upright to be on the right side of the law. No denying it!
Sanjeev Sirohi
