THOMAS JACOB Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this writ petition, originally filed as criminal application, the petitioner seeks deletion of his name as an accused in Case No. 693/p/1991 pending on the file of the learned Additional Chief Metropolitan Magistrate, 37th Court at Esplanade, Bombay and setting aside of the order dated 30/3/1995 passed by the Sessions Court in Revision Application No. 26 of 1995 preferred against the order dated 8/7/1993 passed by the learned Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay.

(2.) THE petitioner who is a practising advocate is facing prosecution for the offence of using forged document as genuine.

(3.) BEFORE this Court several grounds were taken impugning the order dated 30/3/1995 passed by the Addl. Sessions Judge and the order dated 8/7/1993 passed by the Addl. Chief Metropolitan Magistrate, Esplanade, the main ground being that by filing of the charge sheet against the petitioner the respondent exceeded jurisdiction under section 195 of the Criminal Procedure Code as the Sessions Judge by his order dated 29/11/1989 had directed the Registrar to file the complaint only against the surety who had forged and fabricated the documents as in the opinion of the Addl. Sessions Judge the surety had cheated the Sessions Registrar. No directions were given for filing any complaint against the Advocate-petitioner. However on the basis of investigation carried out by the I. O. the charge sheet was filed against the surety as well as petitioner-Advocate. The learned Addl. Chief Metropolitan Magistrate in order to bring home the charge of common intention (section 34) has referred to the role of the petitioner-advocate in collecting the copy of the letter of request from the office of the Sessions Registrar for handing over the said letter of request to the police and handing over the police report verifying the address of the surety filed by the petitioner to the Sessions Registrar. It is pointed out that there is no material before the Addl. Chief Metropolitan Magistrate regarding the involvement of the petitioner in the offence and the learned Addl. Chief Metropolitan Magistrate has based his findings upon an inference. A further plea taken up is that the Courts below failed to appreciate that the mandatory provision of obtaining sanction required by section 195 of the Criminal Procedure Code was not complied with by the prosecution before initiating proceedings against the petitioner. It is submitted by the learned advocate on behalf of the petitioner that the petitioner in the course of his practice as an Advocate was approached by one Abdul Kadar, claiming to be a cousin of the accused Usman Mohd. Pulkandi, to defend the said accused. The petitioner asked the said Abdul Kadar to get the vakalatnama signed by the accused and after the receipt of the said vakalatnama signed by the accused the petitioner-Advocate Thomas Jacob made an application for bail on behalf of the said accused in the Court of Sessions. The application for bail was filed in the Registry and presented in the Court and bail order was passed. It is further pointed out that the said Abdul Kadar himself brought the surety by name Chandubhai Vasantlal Desai who produced relevant documents viz. ration card, P. F. slip etc. and other material including the identity card and the Sessions Registrar on being satisfied about the genuineness of the same accepted the surety. The surety was identified by the petitioner before the Registrar on the basis of said documents and the statement made by Abdul Kadar cousin of the accused, Usman M. Pulkandi, who brought the surety. It has been the contention of the learned advocate on behalf of the petitioner that the petitioner was only carrying out his routine duty in getting the surety application processed, and merely because he had collected the letter from the Sessions Registrar for being handed over to the Kandivli police station would by itself not attract the provision of section 34 (common intention) so as to constitute the offence. My attention is drawn to the decision in the case of Attar Chand Vs. State of Punjab, 1986 Cri. L. J. 1034 wherein it is held that :