Re: complaint u/s 340 cr.p.c.perjury against counsel

Querist : Anonymous (Querist) 24 October 2011 This query is : Resolved
Happy Diwali to all Dear Experts,

'A' a mother filed a false case U/S 12 of PWDV Act-2005 gainst her son "X" (R1) and daughter-in-law 'Y'(R2).She also filed application U/S 23 for Interim mainatenance of Rs. 12,000/- by making false staement on oath that she didnot have any source of Income and she was on the stage of starvation. The fact is that she is a Govt. of India pensioner and getting monthly pensions of Rs. 10,000/-.

Aggrieved by this false case "X" filed an application U/S 340 Cr.P.C.R/W Section 195 Cr.P.C. for prosecuting 'A' for Perjury.

In the meantime getting no monetary relief from the court ,"A" made a false complaint to the Police that on a particular day when her son went out for morning walk her dauaghter-in-law assaulted her. She obtained a DD entry of this complaint.

On the next date of hearing the Counsel of "A" presented the copy of this complaint and said that both the Respondents had assaulted "A". The lady magistrate without giving opportunity of hearing to the respondents arbitrarily passed an Interim Protection Order in favour of "A" restraining the respondents from committing any physical violence against 'A'.Which has been challenged by the Respondents in Session Court.

Question here arise the "A" in her complaint to Police clearly states that when her son went out for morning walk her daughter-in-law assaulted her. But the Counsel of 'A' submitted before the court that both the respondents had assaulted her and the magistrate passed this order based on the submission of the counsel of'A' against both Respondents.

Can "X" file a complaint U/s 340 against the counsel of "A" as the counsel for 'A' made false submission before the court that both respondents assaulted "A" .
"X" has obtained the certified copy of Complaint made to the police.

Copy of the complaint clearly states that when "X" left out then "Y" assaulted her. The fact of the matter is that even "Y" also didnot assualt her and she filed this false complaint only on the advise of her counsel after getting no monetary relief from the Court.

Kindly advise.

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Devajyoti Barman (Expert) 24 October 2011
Mind it every false statement does not amount to perjury.
I do not think you have a good case in the subsequent false allegation.
You rather concentrate on completion of trial and your already filed case u/s 340 crpc.
Good luck.

ajay sethi (Expert) 24 October 2011
a staement made by counsel is under instructions from clients . he must have been informed by his client that both assaulted the mother .

a counsel has no personal interest in the matter .

on next date of hearing you cna clarify that as per complaint only daughter in law had assaulted and that statement made by counsel was on bais of wrong instructions given by A . court will accordingly modify order

Raj Kumar Makkad (Expert) 24 October 2011
Even if court has passed an order under section 23 of PW Act that you both shall not commit any act of violence against your mother then what is illegality therein and where is the ground of appeal principally. The allegation may be contrary to DDR but order is justified and do not warrant any modification.

Arun Kumar Bhagat (Expert) 24 October 2011
Advocate acts on the instructions of his client. He is not supposed to ascertain the truth or falsehood of client's version. This job is assigned to Presiding officer.

prabhakar singh (Expert) 25 October 2011
Following are the observations made by Mr. Justice M. Katju,where speaking for APEX COURT in A.S. Mohammed Rafi v. State of Tamil Nadu he said:...
"Every person, however, wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him."

Then every mind which is inclined to think your way must keep his view changed.

prabhakar singh (Expert) 25 October 2011
A FEW MORE OBSERVATIONS MADE IN THE JUDGMENT IS ALSO NOTICEABLE BECAUSE EVEN NON ADVOCATE PEOPLE IN EXPERT SECTION DO NOT UNDERSTAND DUTIES OF AN ADVOCATE IN PROPER LEGAL PERSPECTIVE :

17. We may give some historical examples in this connection.

18. When the great revolutionary writer Thomas Paine was jailed and tried for treason in England in 1792 for writing his famous pamphlet ‘The Rights of Man’ in defence of the French Revolution the great advocate Thomas Erskine (1750-1823) was briefed to defend him. Erskine was at that time the Attorney General for the Prince of Wales and he was warned that if he accepts the brief, he would be dismissed from office. Undeterred, Erskine accepted the brief and was dismissed from office.

19. However, his immortal words in this connection stand out as a shining light even today :
“From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay he assumes it before the hour of the judgment; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principles of English law make all assumptions, and which commands the very Judge to be his Counsel”

20. Indian lawyers have followed this great tradition. The revolutionaries in Bengal during British rule were defended by our lawyers, the Indian communists were defended in the Meerut conspiracy case, Razakars of Hyderabad were defended by our lawyers, Sheikh Abdulah and his co-accused were defended by them, and so were some of the alleged assassins of Mahatma Gandhi and Indira Gandhi. In recent times, Dr. Binayak Sen has been defended. No Indian lawyer of repute has ever shirked responsibility on the ground that it will make him unpopular or that it is personally dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court lawyer Bhulabhai Desai defended the accused in the I.N.A.trials in the Red Fort at Delhi (November 1945 – May 1946) .

21. However, disturbing news is coming now from several parts of the country where bar associations are refusing to defend certain accused persons.

22. The Sixth Amendment to the US Constitution states “In all criminal prosecutions the accused shall enjoy the right …….to have the assistance of counsel for his defence”.

23. In Powell vs. Alabama 287 US 45 1932 the facts were that nine illiterate young black men, aged 13 to 21, were charged with the rape of two white girls on a freight train passing through Tennessee and Alabama. Their trial was held in Scottsboro, Alabama, where community hostility to blacks was intense. The trial judge appointed all members of the local bar to serve as defense counsel. When the trial began, no attorney from the local bar appeared to represent the defendants. The judge, on the morning of the trial, appointed a local lawyer who undertook the task with reluctance. The defendants were convicted. They challenged their convictions, arguing that they were effectively denied aid of counsel because they did not have the opportunity to consult with their lawyer and prepare a defense. The U.S. Supreme Court agreed. Writing for the court, Mr. Justice George Sutherland explained :
“It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice. Not only was that not done here, but such designation of counsel as was attempted was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid…..”

24. In the same decision Justice Sutherland observed:
“What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense”.

25. In this connection we may also refer to the legendry American lawyer Clarence Darrow (1857-1930) who was strongly of the view that every accused, no matter how wicked, loathsome, vile or repulsive he may be regarded by society has the right to be defended in court. Most lawyers in America refused to accept the briefs of such apparently wicked and loathsome persons, e.g. brutal killers, terrorists, etc. but Clarence Darrow would accept their briefs and defend them, because he was firmly of the view that every persons has the right to be defended in court, and correspondingly it was the duty of the lawyer to defend. His defences in various trials of such vicious, repulsive and loathsome persons became historical, and made him known in America as the ‘Attorney for the Damned’, (because he took up the cases of persons who were regarded so vile, depraved and despicable by society that they had already been condemned by public opinion) and he became a legend in America (see his biography ‘Attorney for the Damned’).

26. In Re Anastaplo, 366 US 82 (1961), Mr. Justice Hugo Black of the US Supreme Court in his dissenting judgment praised Darrow and said :
“Men like Lord Erskine, James Otis, Clarence Darrow, and a multitude of others have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.”

27. At the Nuremberg trials, the Nazi war criminals responsible for killing millions of people were yet defended by lawyers.

28. We may also refer to the fictional American lawyer Atticus Finch in Harper Lee’s famous novel ‘To Kill a Mocking Bird’. In this novel Atticus Finch courageously defended a black man who was falsely charged in the State of Alabama for raping a white woman, which was a capital offence in that State. Despite the threats of violence to him and his family by the racist white population in town, and despite social ostracism by the predominant while community, Atticus Finch bravely defended that black man (though he was ultimately convicted and hanged because the jury was racist and biased), since he believed that everyone has a right to be defended. This novel inspired many young Americans to take up law as a profession in America.

29. The following words of Atticus Finch will ring throughout in history :
“Courage is not a man with a gun in his hand. It is knowing you are licked before you begin, but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.”

30. In our own country, Article 22(1) of the Constitution states :
“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for which arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”.

31. Chapter II of the Rules framed by the Bar Council of India states about ‘Standards of Professional Conduct and Etiquette’, as follows :
“An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practice at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief”.

32. Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar Associations in India are null and void and the right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what the consequences, and a lawyer who refuses to do so is not following the message of the Gita.

33. The Registry of this Court will circulate copies of this judgment/order to all High Court Bar Associations and State Bar Councils in India. The High Court Bar Associations are requested to circulate the judgment/order to all the District Court Bar Associations in their States/Union territories.

Querist : Anonymous (Querist) 25 October 2011
Thanks to all experts for their valuable advice.

@ Mr. Raj Kumar Makkar- The illegality here is that if 'X' & 'Y'have not committed anything wrong then why even the Interim Protection Order against them. By passing an order against X and Y, the court held them prima facie guilty of assault. Article 21 of the constitution of India gives Right to Life which includes Right to life with Dignity.

If one has not done anything wrong then why any Order against him from a court of law, even without giving him opportunity of being heard, which is against principle of Natural Justice and also rule of 'Audi Alterem Partem.

The learned experts just go through the text of the order verbatim : " Ld counsel for complainant requests for protection order as it is alleged that respondents had assaulted the complainant on ..... subsequent to which a complaint with police was lodged but police failed to take any action against the respondents. photocopy of police complaint also placed on record. Considering the fact that both the parties are living in the same house and complainant is 72 years of age, I deem it appropriate to pass an interim order against the respondents especially in the circumstaces narrated above by ld . counsel for complainant.Accordigly , both the respondents are restrained from committing any physical violence against the complainant during pendency of the case."

This order was challenged based on the apprehension that once the complainant has obtained an interim protection order based on false complaint and false affidavit ,then she would be encouraged to make false allegation for breach of this interim Protection Order and Section 32(2) of PWDV Act-2005 states- Upon sole testimony of the aggrieved person, the court may conclude that an offence under sub section (1) of Sec 31 has been committed by the accused.

This Order was challenegd on the following Grounds :

1. Against Priciple of Natural Justice
2. Against Rule of "Audi Alterem Partem.
3. Against Apex Court ruling in Dalip singh vs. State of UP & Othrs ( 2010) 2 SCC 114 which held -" Anyboy who comes to a court with tainted hands is not entitled for any relief Interim or Final.
4. Also in Varsha Kapoor vs UOI and othrs, the High court of Delhi has held that a mother-in-law can not file a complaint against daughter-in-law under PWDV Act.
5. In Shivai Kabra vs. State, the High court at Delhi has held that If there are two opposite cross affidavits from the parties ,the court has to examine these before passing any order.
6. Also in Abhijit Bhikaseth Auti vs. State ,the Bombay High Court has held that before passing any Interim order U/s 23 of PWDV Act ,opportunity had to be granted to the respondents.

@ Mr. Arun Kumar Bhagat & Mr. Ajay Sethi-
Theoritically it is very true that the advocates acts on the instructions of clients but being in this profession I have seen it's the other way round.It would be harsh to make this comment, but it is true that in some of the cases the advocates fabricate the evidences and compel the clietns to follow their instructions. This is evident in this case. While the complainant complains the police that "Y" assaulted her in absence of 'X". But on the contrary , the Consel for the complainant states that both the respondents assaulted "A' on that particular day.Then where the Adocate is following the instructions of the Client.

Kindly advise.

Querist : Anonymous (Querist) 25 October 2011
The aforesaid Interim Protection Order was obtained by misleading the Court. And it is quite clear in this case ,that it was not the complainant ,but rather the Counsel of the complainant ,who misled the Court.