CRL OP/30168/2003 of K.V.T. @ THIRUPATHIAIAH Vs STATE, INSPECTOR OF POLICE on 16 December 2003

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K.V.T. @ Thirupathiaiah, the petitioner herein seeking foranticipatory bail in respect of the case registered in Crime No.792 of 2003 onthe file of the Inspector of Police, E.4, Maduravoil Police Station, ChengaiEast 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 inCrl.O.P.No.30168 of 2003.

2. This application was filed on 3.9.2003. The petitioner hasengaged Mr.V.Gopinath, the senior counsel through the counsel on recordM/s.C.Christopher and D.Saravanan.

3. Even prior to this, the very same petitioner filed an applicationfor anticipatory bail in Crl.O.P.No.29502 of 2003 in respect of the same caseon 27.8.2003 through the counsel one Mr.K.Varadha Raja and the same ispending.

4. When the matter came up before this Court after notice for final disposal, Mr.V.Gopinath, the learned senior counsel appearing inCrl.O.P.No.30168 of 2003, would point out that the petitioner Thirupathiaiahhas never engaged the said Mr.Varadha Raja, the learned counsel and he has notgiven instruction to him to file an application for anticipatory bail and assuch, the application in Crl.O.P.no.29502 of 20 03 has been filed without anyauthorisation from the petitioner.

5. To this effect, Thirupathiaiah, the petitioner has filed an affidavit stating that he had not instructed anybody to file anticipatory bailpetition on his behalf and as such, petition in Crl.O.P.No.2950 2 of 2003 wasfiled by the said Varadha Raja, the learned counsel without his authorisation.It is also pointed out in this affidavit that the particulars about theaddress of the petitioner and his father's name are wrongly given inCrl.O.P.No.29502 of 2003. In the petition in Crl.O.P.No.29502 of 2003 filedby 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 areK.V.T. @ Thirupathiaiah, S/o. K.Venkatasubbiah, No.100, 15th Cross Street,Senthil Nagar, Kolathur, Chennai-99. These particulars are correctly given inthe complaint which has been given by the defacto complainant against him aswell as in this petition. He has also filed a separate affidavitauthorising Mr.V.Gopinath, the learned senior counsel to representM/s.C.Christopher and D.Saravanan to appear for him.

6. When the matter was taken up by this Court, the said Mr.VaradhaRaja, who claimed himself as the counsel for the petitioner inCrl.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 ofMr.V.Gopinath, the learned senior counsel in Crl.O.P.No.30 168 of 2003 for thepetitioner and also the reply by the Government Advocate appearing for therespondent.

7. According to prosecution, one Krishnan, the Power of Attorney

Agent of one Abdul Hadhi Basha has been looking after his lands in the villageand one Abdul Haque is having lands adjoining the lands of the said AbdulHadhi Basha and when the said Abdul Haque disturbed the possession of AbdulHadhi Basha, Krishnan, his Power Agent gave a complaint to the police, but noaction was taken and therefore, he filed a suit in O.S.No.197 of 2000 againstthe neighbouring land owner Mr. Abdul Haque and obtained an interiminjunction order in I.A.No.740 of 2000 on the file of the District MunsifCourt, Poonamallee. On 5.7.2 003 at about 6.00 p.m., when Krishnan, the PowerAgent of Abdul Hadhi Basha was proceeding to the above said land,Thirupathiaiah, the petitioner and other accused, the supporters of the saidAbdul Haque, came to the land and questioned the Power Agent and picked upquarrel with him for having resorted to initiation of the proceedings beforethe police as well as before the civil Court. One Ranganathan, M.L.A.,Purasawalkam Constituency (A3) instigated the petitioner to attack him and athis instance, the petitioner with a revolver aimed at him and ultimately, shotat the air. With referen ce to this incident, Krishnan lodged a complaint before the police. But, no action was taken. Therefore, Krishnan filedCrl.O.P.No.26730 of 2003 before this Court for giving suitable direction tothe police. Accordingly, this Court by the order dated 13.8.2003, directedthe respondent police to register his complaint and file a final report. Inpursuance of this order, the case was registered against the petitioner andothers in Crime No.792 of 2003 by the respondent police for the offences underSections 147, 148, 341, 447, 506(ii) I.P.C. read with Section 25 of the ArmsAct. At that stage, the petitioner apprehending arrest in respect of theabove offences, filed this application in Crl.O.P.No.30168 of 2003.

8. According to Mr.Gopinath, the learned senior counsel, a falsecomplaint had been given by the complainant against the petitioner and othersdue to rivalry and actually, no such occurrence had taken place and as thepetitioner is a respectable person and dealing with Real Estate business, heseeks anticipatory bail, otherwise if arrested, he will be put to shame anddisgrace.

9. This Court has heard the learned Government Advocate and gonethrough the case diary.

10. It is to be noted in this context that co-accused Ranganathan hasalready been granted anticipatory bail subject to some conditions. Thecounsel for the petitioner would submit that the petitioner is prepared toabide by any condition in the event of grant of anticipatory bail.

11. During the pendency of enquiry in this application, this Court bythe order dated 29.9.2003 directed that the petitioner shall not be arrestedpending enquiry in this petition. Further, this Court passed an order on4.9.2003 directing the petitioner to hand over the revolver which is allegedto have been used by him to the police within two days. In the very sameorder, Mr.K.Varadha Raja, the learned counsel in Crl.O.P.No.29502 of 2003 whoclaimed that he has been engaged by the petitioner, was directed to appearbefore this Court to verify as to whether such an instruction had been givenby the petitioner to him as declared by him in his memo of appearance. Inpursuance of the above direction, the petitioner handed over his revolverbearing No.A-87064, 32 Bore revolver make: Webly & Scott by England, andbearing licence No.4/4/V-4 renewed from 01.01.2003 to 31.12.2005, to theInspector of Police, E4 Maduravoil Police Station. To this effect, the memoby 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 2003did 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 therevolver has been handed over to the police, this Court is of the view thatthe petitioner also could be granted anticipatory bail with stringentconditions in the light of the serious allegation made against him.

13. In the result, the petitioner shall be released on bail, in theevent of arrest, on his depositing a cash security of Rs.10,000/- ( Rupees Tenthousand) 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 alike sum to the satisfaction of the above said Court and on further conditionthat he shall report to the respondent police daily at 10.00 a.m. untilfurther orders. The petitioner shall surrender within two weeks from the dateof receipt of this order, or else, this order would stand automaticallycancelled.

14. Before parting with this case, this Court is constrained to dealwith the sordid feature which is noticed in this case relating to the filingof the application in Crl.O.P.No.29502 of 2003 by one K. Varadha Raja, thecounsel on behalf of the petitioner, even without getting any instruction fromthe 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 HadhiBasha was not entertained by the police. Subsequently, as stated earlier, bythe 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 hasbeen instructed to appear on behalf of the petitioner, filed a petition foranticipatory bail before this Court in Crl.O.P.No.29502 of 2003 on 27.8.2003along with the memo of appearance. Actually, no instruction had been given tohim by the petitioner, who has filed an affidavit to the said effect.

16. Without the knowledge that another application had already beenfiled on his behalf in Crl.O.P.No.29502 of 2003 and the same is pending, thepetitioner 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 seniorcounsel to argue on behalf of the petitioner Thirupathiaiah. This applicationwas filed on 3.9.2003. Only at that stage, the petitioner came to know thaton his behalf, an application has been filed earlier in Crl.O.P.No.29502 of2003 without getting any instruction from him. Therefore, he filed anaffidavit in Crl.O.P.No.29502 of 2003 stating that he has not instructedanybody to file anticipatory bail petition and the said anticipatory bailpetition has been filed by the same advocate with an ulterior motive withouthis instruction by giving different father's name and address.

17. In view of such development, as indicated above, this Court wasconstrained to issue notice to the said Varadha Raja, the counsel, who claimsto 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, whichconduct on the part of the counsel would show that the statement of thepetitioner that he has not given any instruction to him is true. Further,counsel address was not furnished in the memo and his Enrollment Number alsohas not been given.

18. It is quite unfortunate to notice in recent times that theanticipatory bail applications have come to be filed by different advocates inrespect of one and the same accused in the same crime number both in theSessions 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 AmicusCuriae to give suggestion to this Court so that suitable direction could begiven to the Registry of this Court as well as to the Sessions Courts. Bothof 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 andthe same was dismissed. After dismissal, he engaged counsel at Madurai tofile an application for anticipatory bail before the Sessions Court, Maduraiwithout 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 HighCourt without showing the dismissal of the earlier applications both in theHigh Court and in the Sessions Court. The same was again dismissed on merits.Even thereafter, the petitioner engaged one other counsel before the SessionsCourt at Madurai and filed an application for anticipatory bail without theearlier details. This time, the accused was able to get anticipatory bailbefore the Madurai Sessions Court subject to some conditions. Even thoughanticipatory bail had been obtained by him from the Madurai Sessions Court,another application has been moved before the High Court without knowing aboutthe anticipatory bail order of the Sessions Court. When the matter came upbefore the High Court, neither the counsel for the accused nor the prosecutorinformed about the grant of anticipatory bail by the Sessions Court. However,having no knowledge about that, this time, the High Court granted anticipatorybail 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 inthe High Court, without knowing the same, one other counsel on behalf of thepetitioner filed an application again for anticipatory bail before this Courtin respect of the very same case. Only at that stage, this Court was able tofind out the sorry state of affairs where the petitioner even after gettinganticipatory bail both from the Sessions Court and the High Court, again movedthe High Court by engaging different counsel. In that matter, ultimately,this Court found that the police officers have not given proper instruction tothe Prosecutor concerned and consequently, this anomalous situation wascreated wherein the Sessions Court granted anticipatory bail without knowingthe order of the High Court dismissing the anticipatory bail applicationearlier or the Sessions Court granting bail without knowing that alreadyanticipatory bail granted by the High Court. This Court was constrained toconduct enquiry in that matter and summoned the persons concerned andultimately, 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 thefriends and relatives of the accused as well as the accused and on thoseinstructions, the different counsel would rush to the Court to file separateapplications in different fora. This situation would often arise because ofthe fact that there is no opportunity for the counsel to have a direct contact

23. It is quite obvious that such an unsavory situation arises inmatters of anticipatory bail because of the fact that the Criminal Rules ofPractice does not provide for vakalat but merely provides for a Memo ofappearance to be filed on behalf of the accused persons, be it before thelower Courts or in the High Court for that matter. Ultimately, the differentcounsel, who are being misled by the friends and relatives of the accused andthe accused, on the basis of their instruction, have filed differentapplications before different fora simultaneously, only by filing of memo ofappearance as nobody insists for vakalat to be obtained from the accused. So,in order to avoid such anomalies, the present endeavour is made detailing therelevant provisions of the Criminal Rules of Practice and suggesting ways andmeans to remove such ugly picture in future.

24. The Criminal Rules of Practice and Orders are framed and issuedfrom time to time by the Government and the High Court in exercise of thepowers conferred by Article 227 of the Constitution of India. The preamble tothe Criminal Rules of Practice, Madras would however state that the High Courtmakes the rules and orders for the guidance of Criminal Courts and the HighCourt.

25. Rule 29(28) of the Rules of Practice provides as under:

"Pleader to file vakalatnama for prosecution and memo of appearancefor defence.--- (1) Every Pleader, as defined in Section 4(r) of the Codeother than an Advocate or a Public Prosecutor, appearing for the prosecutionin any criminal proceeding other than a Criminal Appeal shall file in court avakalatnama from his client authorizing him so to appear. In all CriminalAppeals, such pleader may file a memorandum of appearance instead of avakalat. Every such pleader defending an accused person and every Advocateappearing in any criminal proceedings in any Court shall be required to file amemorandum of appearance containing a declaration that he has been dulyinstructed to appear by, or on behalf of, the party, whom he claims torepresent.

In all other cases, a vakalat is required."

26. Thus, Rule No.29(28) of the Criminal Rules of Practice does notcontemplate filing of vakalat and as per the rule every Advocate appearing inany court on behalf of accused shall be required to file a memorandum ofappearance containing declaration that he has been fully instructed by, or, onbehalf of the party, whom he claims to represent.

27. Rule 247 (234) provides that the rules and orders framed andissued by the High Court shall govern the practice of the High Court on theappellate side to the extent to which they are applicable. Apart from theaforesaid two provisions, the Criminal Rules of Practice does not lay down anyother guidance or criteria in the matter.

28. In the case reported in 1988 L.W. (Crl.) 185, the Madras HighCourt had occasion to consider the application of the Criminal Rules ofPractice and with reference to the Rule 29(1), it had observed that in thecontext of the specific provision contained therein, proceedings for maintenance even though they are in the nature of criminal proceedings, a memoof appearance would suffice for defending a husband/respondent in the aboveproceedings.

29. It has been held in MANIKONDA LINGAYYA v. EMPEROR (1924 TheMadras Weekly Notes 51) that a memorandum of appearance is sufficient for thevalid presentation a criminal appeal and no vakalat is necessary for the same.

30. Similarly, in the bail applications also, this Court would comeacross cases where the bail applications are being filed through memo ofappearance by the different counsel for the same accused even without gettinginstruction directly from the accused who is in prison.

31. This Court would recall one shocking incident. In one case, thecomplainant party himself had arranged a counsel to file a bail application onbehalf of the accused who was in prison against whom the complainant party hada revengeful grudge and after getting the bail application ordered, thecomplainant party arranged for sureties and furnished the same and inpursuance of the bail order of the Judicial Magistrate after accepting thesureties, the accused person who had not known about the bail application andthe 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 1924Madras Weekly Notes page 51(supra), this Court is not inclined to insist forvakalat as vakalat requires affixure of stamp. Therefore, it would be betterto insist for the filing of memo of appearance with signature of every accusedauthorising the counsel to appear on his behalf and the same must be attestedby an Advocate or Notary Public and the same shall be identified by thecounsel 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 theEnrollment number as well as the detailed address so that the Court couldcontact the counsel for further clarification. Similarly, in the bailapplication, the memo of appearance with signature of accused attested byPrison authorities can be insisted.

33. In T.D.JOSEPH v. SUNIL AND OTHERS (1995(2) L.W.441), a DivisionBench of this Court, while dealing with anticipatory bail application,emphasized that either the Sessions Court or the High Court while grantinganticipatory bail, must be satisfied that the person who seeks relief waswithin its jurisdiction and this satisfaction cannot merely arise on the basisof some address given in the cause title of the petition even without asupporting affidavit and there must be materials to show to the court tosatisfy its conscience that the person concerned was certainly within itsjurisdiction.

34. Therefore, the following directions are being issued to theRegistry of this Court as well as to the other Courts in regard toentertainment of the bail applications as well as the anticipatory bailapplications:

(1) In the case of applications seeking for anticipatory bail, theOffice should insist that the memo of appearance should contain the signatureof every accused and the same must be attested by an Advocate or a NotaryPublic and also to be identified by the counsel appearing for the accused.

(2) In the case of bail applications where the accused is in judicialremand, it shall be insisted that the memo of appearance should contain thesignature of the accused attested by the Prison Superintendent or Jailor. Itwould be desirable for the Prison Superintendents to forward such memo ofappearance signed by the accused, duly attested by them, to the Advocates orthe near relatives of the accused without any delay whatsoever.

(3) In the anticipatory bail application, as laid down by the DivisionBench of this Court in 1995(2) L.W. (Crl.) 441, the Office should insist forthe clear particulars about the address of the person who seeks foranticipatory bail to verify whether he was within its jurisdiction either withsupporting affidavit or some other materials and also the address particularsof the advocate as well as his Bar Council Enrollment Number.

35. These directions are issued subject to the approval of My Lordthe Hon'ble The Chief Justice. Therefore, the Registry is directed to placethe papers before My Lord The Hon'ble The Chief Justice for approval and forissuing administrative directions to the courts concerned.

36. This Court records its full appreciation for the servicesrendered 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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