Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
MISCELLANEOUS APPLICATION NO.1242 OF 2021
IN
SPECIAL LEAVE PETITION (CRL.) No.7628 of 2019
SURESH CHANDRA & ORS. ….PETITIONERS
v.
STATE OF UTTAR PRADESH ….RESPONDENT
SIYA RAM ….APPLICANT
O R D E R
The Special Leave Petition was filed by showing the applicant
– Siya Ram as the first petitioner along with four other petitioners,
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for taking exception to the judgment and order dated 26 October
2018 passed by the High Court of Judicature at Allahabad in
Criminal Appeal No.1815 of 1986. The Sessions Court had
convicted the petitioners under Section 302 r/w 149 of the Indian
Penal Code, 1860. The High Court, by the impugned judgment,
Signature Not Verified
scaled down the offence to the one under Section 304PartI of the
Digitally signed by
DEEPAK SINGH
Date: 2022.05.17
15:32:55 IST
Reason:
Indian Penal Code. The petitioners were sentenced to undergo
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rigorous imprisonment for ten years and pay a fine of Rs.15,000/
each.
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2. By the order dated 29 April 2019, the learned Chamber
Judge rejected the application for grant of exemption from
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surrendering. The learned Chamber Judge, by the order dated 15
July 2019, granted time of two weeks to the applicant (first
petitioner in the Special Leave Petition) to surrender, failing which
the Special Leave Petition qua the first petitioner/applicant herein,
was to stand dismissed for nonprosecution without further
reference to the Court.
3. The applicant did not surrender within the extended time,
and therefore, the Special Leave Petition stood dismissed insofar as
the applicant is concerned. By the order dated 23th August 2019,
the said Special Leave Petition was dismissed qua the other
petitioners.
4. After the application for grant of exemption from surrendering
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was rejected by this Court on 29 April 2019, the applicant/first
petitioner did not surrender. Therefore, the Sessions Court,
Etawah, Uttar Pradesh passed an order directing the petitioners to
be taken into custody. As disclosed in the Affidavit filed by the Jail
Superintendent of the District Jail at Ghaziabad, State of Uttar
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Pradesh, the applicant was taken into custody on 04 October
2019. The applicant, through his present advocate, filed Special
Leave Petition bearing Diary No.20835 of 2020 against the same
judgment. The Registry of this Court brought to the notice of the
advocate that the applicant/first petitioner along with four others
had earlier filed the Special Leave Petition (Crl.) No.7628 of 2019
(Diary No.11324 of 2019) for challenging the same judgment.
According to the case made out in this application, the present
advocate for the applicant enquired with the applicant through his
son whether he had filed the Special Leave Petition (Crl.) No.7628
of 2019. The applicant informed his advocate that he had not filed
any such petition. Therefore, the advocate for the applicant
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addressed a letter on 18 January 2021 to the Superintendent of
Jail at Etawah, requesting him to enquire. According to the
applicant, the Superintendent of Jail at Etawah informed the
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Advocate by his letter dated 27 January 2021 that after enquiring
from the second to fifth petitioners in the Special Leave Petition
(Crl.) No.7628 of 2019, it was revealed that the applicant – Siya
Ram had not filed the Special Leave Petition (Crl.) No.7628 of 2019
along with other petitioners.
5. On the application made by the advocate for the applicant,
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the learned Chamber Judge permitted the advocate to inspect the
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file of the Special Leave Petition (Crl.) No.7628 of 2019. On 30
June 2021, when the advocate inspected the file, he noted that the
signature of the applicant appearing on the Vakalatnama filed in
the Special Leave Petition (Crl.) No.7628 of 2019, was in Hindi
language. The applicant has stated that he being an illiterate
person, used to put his thumb impression. Reliance is placed on
Vakalatnama in Special Leave Petition (Crl.) Diary No.20835 of
2020 filed by the applicant which bears his thumb impression.
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Even a reliance is placed on the Custody Certificate dated 20
December 2019, issued by the Jail Superintendent of District Jail
at Etawah, which bears the left thumb impression of the applicant.
In short, the contention is that the Special Leave Petition (Crl.)
No.7628 of 2019 was not filed by the applicant and therefore, a
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prayer has been made for recalling the order dated 15 July 2019
passed in the Special Leave Petition (Crl.) No.7628 of 2019.
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On 07 January 2022, the learned Chamber Judge noted the
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contentions raised by the applicant and passed the following order:
“……This court has no difficulty in recalling the
order if the Applicant/petitioner Siya Ram has not
filed the special leave petition and has also not
authorized filing of the same. It is however,
necessary to find out the true facts under which
Mr.S (name masked) , AdvocateonRecord came to
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file the special leave petition. This is necessary to
protect him as well as other AdvocatesonRecords
who could be approach by unauthorized persons for
filing the special leave petitions. Under these
circumstances, we would direct the Registry to
enquire into the matter and submit a report. As
notice has not been issued in the matter, we do not
have the advantage of asking the Counsel for the
State of U.P. to enquire into the matter and get
information. Let a copy of the SLP paper book with
the Interlocutory applications be served on the
standing counsel of Uttar Pradesh for getting the
necessary information.
The enquiry officer shall also discuss the matter
with the President of Supreme Court Advocates on
Record Association.
List these I.A’s after report from the Registry.”
7. Accordingly, Mr Mahesh T. Patanakar, Additional Registrar of
this Court, was appointed as an Inquiry Officer. He recorded
statements of Mr.S (name masked) , AOR who had filed the Special
Leave Petition (Crl.) No.7628 of 2019 and his advocate colleague
Mr.R (name masked) . The Inquiry Officer also interacted with the
office bearers of the Supreme Court AdvocatesonRecord
Association (SCAORA) on the issue. The conclusion drawn by the
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Inquiry Officer vide his report dated 29 January 2022 is that it
does not seem probable that somebody impersonated accused –
Siya Ram in presence of the other four coaccused. However, the
Inquiry Officer noted that the only fact in favour of the applicant is
that the vakalatnama bears his signature and not his thumb
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impression. He has taken a note of various suggestions made by
the President and the VicePresident of SCAORA to avoid such
controversy in future.
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By the order dated 08 April 2022, this Court sought the
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assistance of the learned counsel representing the State of Uttar
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Pradesh. Accordingly, the affidavit dated 04 May 2022 of the Jail
Superintendent of District Jail at Ghaziabad has been filed on
record by the learned counsel appearing for the State of Uttar
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Pradesh. After the applicant was taken into custody on 04
October 2019, he has been detained in the said District Jail at
Ghaziabad. Along with the affidavit, the Jail Superintendent has
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annexed a photocopy of the statement of the applicant dated 25
April 2022 as well as the statement of the second to fifth
petitioners in the Special Leave Petition (Crl.) No.7628 of 2019. The
statement of the applicant bears his thumb impression, in which
he has clearly stated that he has not filed the Special Leave
Petition (Crl.) No.7628 of 2019. He has also stated that he is an
illiterate person.
9. Thus, after making an inquiry, there is an affidavit filed by
the Jail Superintendent at Etawah. The statement of the applicant
annexed to the affidavit records that he being an illiterate person,
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is unable to sign and therefore, he is affixing his thumb impression
on documents.
I have perused the statement of Mr.S, AOR recorded by the
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Inquiry Officer, in which he has stated that the applicant had met
Mr.R, an advocate working with him and that he had not met any
of the petitioners. I have also gone through the statement of Mr.R,
who claims that the petitioners had approached him through their
local advocate at Allahabad. He stated that all of them visited his
officecumresidence and signed the Vakalatnama in his presence.
He stated that the applicant signed the affidavit in support of the
Special Leave Petition as he was the first petitioner. It is not the
case made out by Mr.R that he knew the applicant or for that
matter, any other petitioners. He has not stated that anyone
personally known to him had introduced the applicant to him. He
has not stated that he had verified the identity of the applicant
after perusing his Aadhaar or PAN Card. He has not stated that the
affidavit in support of the Special Leave Petition was affirmed by
the applicant in presence of a Notary Public.
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11. When Mr.R did not personally know the petitioners and when
they were not accompanied by a local advocate or anyone who was
known to him, it was his duty to verify the identity of the
petitioners who came to his office on the basis of the documents
such as Adhaar card or PAN card.
12. At this stage, it is necessary to note clauses (a) and (b) of Rule
7 under Order IV of the Supreme Court Rules, 2013 (for short, ‘the
said Rules’), which read thus:
“7.(a) An advocateonrecord shall, on his filing a
memorandum of appearance on behalf of a party
accompanied by a vakalatnama duly executed by
the party, be entitled–
(i) to act as well as to plead for the party in the
matter and to conduct and prosecute before the
Court all proceedings that may be taken in
respect of the said matter or any application
connected with the same or any decree or order
passed therein including proceedings in taxation
and applications for review; and
(ii) to deposit and receive money on behalf of the said
party.
(b) (i) Where the vakalatnama is executed in the
presence of the AdvocateonRecord, he shall
certify that it was executed in his presence.
(ii) Where the AdvocateonRecord 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.”
(underline supplied)
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I have perused the Vakalatnama in the Special Leave Petition
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(Crl.) No.7628 of 2019. As required by subclause (ii) of clause (b)
of Rule 7, it was the duty of Mr.S to make an endorsement on the
Vakalatnama that he has satisfied himself about the due execution
of the Vakalatnama. It was his duty to make an endorsement as
required by clause (b)(ii) of Rule 7 of the said Rules.
14. Thus, if the Vakalatnama is executed in presence of the
AdvocateonRecord himself, it is his duty to certify that the
execution was made in his presence. This certification is not an
empty formality. If he knows the litigant personally, he can certify
the execution. If he does not personally know the litigant, he must
verify the identity of the person signing the Vakalatnama from the
documents such as Adhaar or PAN card. If the client has not
signed the Vakalatnama in his presence, the AOR must ensure
that it bears his endorsement as required by clause (b)(ii) of Rule 7.
Compliance with Clause (b)(ii) of Rule 7 of the said Rules is very
important. It is not an empty formality and therefore, it is the duty
of AORs to ensure that due compliance is made with the said
requirement. Though we find that in many cases, hypertechnical
objections are being raised by the Registry, noncompliance with
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clause (b)(ii) of Rule 7 is being completely overlooked. The
Vakalatnama of the applicant, in this case, did not bear
certification as required by subclauses (i) or (ii) of clause (b) of
Rule 7 of the said Rules.
15. In view of the aforesaid discussion, the contention raised by
the applicant that he did not sign the Vakalatnama in the Special
Leave Petition (Crl.) No.7628 of 2019 and that he did not sign the
affidavit in support thereof, will have to be accepted. However, the
action of taking the applicant into custody cannot be nullified.
Accordingly, the application is disposed of by holding that the
Special Leave Petition (Crl.) No.7628 of 2019 was not filed by the
applicant and that the same shall be treated as a Special Leave
Petition filed only by second to fifth petitioners.
16. It will be advisable if the Registry issues a Circular inviting
the attention of the AdvocatesonRecord to this order as well as to
the requirement of making compliance with clause (b) of Rule 7 of
Order IV of the said Rules.
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17. The Miscellaneous Application is disposed of in the above
terms.
….…......................J.
(ABHAY S. OKA)
New Delhi;
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May 13 , 2022.
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ITEM NO.1501 COURT NO.12 SECTION II
(For order)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Miscellaneous Application No. 1242/2021 in SLP(Crl) No.
7628/2019
(Arising out of impugned final judgment and order dated 23-08-
2019 in SLP(Crl) No. No. 7628/2019 passed by the Supreme Court
Of India)
SURESH CHANDRA & ORS. Petitioner(s)
VERSUS
THE STATE OF UTTAR PRADESH Respondent(s)
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SIYA RAM Applicant(s)
Date : 13-05-2022 This Application was called on for
pronouncement of order today.
For Petitioner(s) Mr. Vikas K Singh, Adv.
Mr. Vikram Singh, Adv.
Mr. Sham Chand, Adv.
Mr. T. N. Singh, AOR
For Respondent(s) Mr. Ankit Goel, AOR
Mr. Satyam Pandey, Adv.
Hon’ble Mr. Justice Abhay S. Oka pronounced the non-
reportable order.
The Miscellaneous Application is disposed of in terms of
the non-reportable order.
Pending application(s), if any, shall stand disposed of.
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(NISHA KHULBEY) (PREETHI T.C.)
SENIOR PERSONAL ASSISTANT COURT MASTER (NSH)
(signed non-reportable order is placed on the file)
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