The Rajasthan High Court has disapproved of the trend of Advocates’ Clerk or Advocate signing the affidavits for applications/petitions/counter affidavit etc. on behalf of the clients imperviously and oblivious of the contents therein insinuating that the same amounts to fraud.

The Court was considering a Petition seeking quashing of an FIR registered for the offences under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code.

The bench of Justice Anoop Kumar Dhand observed, "Recently, it is noticed that there has been a growing trend of Advocates’ Clerk or Advocate signing the affidavits for applications /petitions/counter affidavit etc. imperviously and oblivious of the contents therein. A vakaltnama to represent a party in Court is held by an advocate and the brief is entrusted to the Advocate. The Advocate client relationship is quite clearly accepted as a fiduciary relationship and the communication is privileged and confidential. It is strictly between the client and the Advocate. Neither the brief nor the permission to represent a party is to be shared by the Advocate with his clerk. An Advocate or his clerk signing any petitions/applications/reply or affidavit instead of the party himself or a person designated/authorized by the party or the Advocate holding the Vakalatnama’s/petition is unacceptable and such attempts to subvert the law is impermissible."

The Petitioner was represented by Advocate Harshita Sharma while the Public Prosecutor Amit Gupta.

Facts of the Case

Counsel for the Petitioner submitted that a Suit for Partition was filed by the Respondent-Plaintiff against the instant Petitioner-Defendant. Since the proceedings of the Suit were going on at a snail’s pace, the Petitioner submitted Writ Petition seeking direction for expeditious disposal of the Suit. However, the office pointed out a defect that the Cause Title of the Petition was not matching with the Civil Suit and the signatures were also not matching with the respective party’s name. Counsel submitted that it appears that the Advocate’s clerk has put his own signatures under the name of the Petitioner. He further submitted that subsequently, the mistake was realized and an Application was submitted by the Petitioner for clarification of the situation and this time it had original signatures of the Petitioner, however the office again pointed out a defect regarding mismatch of the cause title.

He averred that the Petitioner never put his signatures under the name of the other side in any of the papers submitted before the Court and a complaint has been lodged against his local counsel before the Bar Association, Kota and before the Bar Council of Rajasthan for taking action against him for committing the nuisance.

Reasoning By Court

The Court at the outset remarked that the Petitioner may be right in saying that he was not benefited from the order but it cannot ignore the fact that mischief has been committed.

"Such practice of filing a petition with incorrect signatures of a party is not appreciable on the part of the litigant, the lawyers or their clerks", the Court ruled.

It added that advocate's clerk, no doubt renders invaluable assistance in the advocate's office in various day to day matters including filing, effecting service, coordination etc., however, nothing entitles or enables an Advocate's clerk to appear before the Court on behalf of an Advocate.

"Similarly, an advocate's clerk cannot swear affidavits in a perfunctory manner for petitions/applications on behalf of a party before the court, especially those which include facts beyond his personal knowledge or where he cannot completely explain how he derived knowledge of the facts he has affirmed", the Court held.

Stressing that justice mostly depends upon the fiduciary relationship shared by the Bar and the Bench, it pointed out that let alone affidavits, the Courts do not think twice before presuming any document filed by an Advocate to be genuine.

"Justice is often metaphorically termed to be blind, but the officers of Courts must not dare to betray the trust of the Bench deeming the Judges to be sightless. They may not forget that it is this very justice delivery system which provides the Judges with farsightedness and confers extraordinary powers on their shoulders to ensure that blind-eye of the lady of justice does not make the society believe that the entire justice delivery system is visionless. Fraud played on this Court by an Advocate or for that matter even by an Advocate’s clerk is a severe form of contemptuous attitude", the Court observed.

Stating that it is the responsibility of the Advocate and the Advocate’s clerks to bring correct state of affairs before the Court and their attempt should not be to misguide the Court in any manner, it warned that the Advocate or the Advocate’s Clerk has no personal knowledge about a particular document which is produced by a party, then it is to be verified properly before bringing the same on record and it is also better to ask the concerned party to swear the affidavit.

"The practice of Advocates or their clerks in filing the affidavit/petition/application/reply without proper representation with their own signatures cannot be appreciated and the same is liable to be deprecated. It is the duty of the litigants and their Advocates to file the petition/application/reply/affidavit in accordance with the Rules, with correct signatures of the party concerned to assist the Court in administration of Justice", the Court remarked.

It thus refused to quash the FIR in as much as, it would give a wrong message to the society at large.

The Petition was accordingly disposed of.

Cause Title: Rakesh Jain v. State of Rajasthan

Appearances:

Petitioners- Advocate Harshita Sharma, Advocate Vivek Yadav, Advocate Tushar Sharma, Advocate Swadha Bhargav

Respondents- Public Prosecutor Amit Gupta, Advocate Anil Kumar Sharma

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Rajasthan High CourtJustice Anoop Kumar Dhand

Sheetal Joon