Monday, May 14, 2018

Sheila Sebastian v. R Jawaharaj: Strict Interpretation or Retroactive Law making?

(I am pleased to host a Guest Post by Ms. Sregurupriya Ayappan, a Third Year Student at NLSIU Bangalore

Recently, in Sheila Sebastian v. R. Jawaharaj, a Two-Justices’ Bench of the Indian Supreme Court, having “strictly interpreted” the provisions defining forgery in the Indian Penal Code 1860 [IPC], concluded that “for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery” (Para 25). In this post, I argue that (a) the Court has adopted a colloquial interpretation of “making a false document” rather than strictly interpreting Section 464 IPC and has done away with certain ingredients of the offence present in the provision and, (b) it has improperly applied the precedents it has relied upon. 

Strict Interpretation of the Provision 

The facts of the case, simply put, are this. Accused No. 1, with the help of someone impersonating as a certain Doris Victor (now deceased), obtained a Power of Attorney [PoA] in his name. By virtue of this PoA, he then executed a mortgage deed in favour of the Accused No. 2. This mortgage deed was signed by the A-1 (Para 10). Further, he had also affixed his signature on the original PoA after receiving it (Para 13). So, the crux of the matter was whether the actions of the A-1 would amount to making a false document as defined in Section 464 IPC. Specifically, the “First” part of that provision which says that: 

A person is said to make a false document or false electronic record— First —Who dishonestly or fraudulently—
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any [electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature],
with the intention of causing it to be believed that such document or part of document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; 

The Court observed that “there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that ‘false document’” (Para 26). I disagree, for a strict interpretation of the provision makes it apparent that execution of the mortgage deed in itself amounts to forgery. 

There are several reasons supporting such a reading. First, A-1 acted “dishonestly”. Section 24 IPC defines “dishonestly” as something which causes wrongful loss or wrongful gain to someone. The act of executing the mortgage deed would indeed cause wrongful loss to the real owner of the property and wrongful gain to the accused persons thereby meeting the ingredients of Section 24 IPC. Section 25 IPC defines “fraudulently” as something that is done with the intent to defraud. The word “defraud” is not defined in the statute. In Vimla (Dr.) v. Delhi Admin (AIR 1963 SC 1572), the expression “defraud” was broken into two elements: deceit and injury to the person deceived. While the accused has clearly committed deceit by making the concerned authorities issue the PoA, it cannot be said that the injury is caused to the persons deceived. However, since, Section 464 IPC states dishonestly or fraudulently, it would suffice that one of these can be shown. 

Second, A-1 signed the PoA. He also signed and executed the mortgage deed. Third, he signed and executed the deed with the intention of causing it to be believed that it was done so by the authority of the late Doris Victor by whose authority he knows it was not executed by virtue of not having a genuine PoA. Finally, although illustrations are not binding on the interpretation of the operational part of the provision, it is helpful to look at Illustration (b) while deciding the scope of “making a false document”: 

(b) A writes the word “accepted” on a piece of paper and signs it with Z 's name, in order that B may afterwards write on the paper a bill of exchange drawn by B upon Z, and negotiate the bill as though it had been accepted by Z. A is guilty of forgery; and if B, knowing the fact, draws the bill upon the paper pursuant to A 's intention, B is also guilty of forgery. 

Here, despite B not having affixed his signature or modified any portion of the bill of exchange can be held guilty of forgery if he goes ahead and executes the bill with the knowledge of A’s intention. It seems that when the Court states that the accused cannot “be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery,” it interpreted “making a false document” as it is in common parlance and not as per the statutorily laid down definition in Section 464 IPC resulting in a distinction between “making” and “causing to be made” that is not envisaged by the provision. 

Improper Application of Precedents 

The Court relies on four judgements in its interpretation of Section 464 IPC. It is my contention that these precedents are either not relevant to the case at hand, and if they are, do not help the court in arriving at its decision. 

In Dickins v. Gill, (1896) 2 QB 310, the issue before the Queen’s Bench was the interpretation of the phrase “lawful excuse.” Here, a person had ordered a fictitious die to be made, the possession of which was prohibited by law, and had taken the defence of lawful excuse because it was innocent use. The Supreme Court has, without context, relied on a statement of Justice Collins, who while distinguishing between possession and making, stated “it is therefore necessary to introduce the word 'knowingly' in that case, whereas it is not necessary in the case of ‘making,’ which in itself involves a conscious act on the part of the person who does it.” He did not make a distinction between “make” and “cause to be made”. Ironically, in this case, the person concerned had caused a fictitious stamp to be made although the analysis is restricted to whether or not subsequent possession was with lawful excuse. 

Further Section 464 IPC defines what “making a false document” is and this includes within its fold making, signing, sealing and executing a document. It is extremely curious, that despite the statute specifying the scope of making, the Supreme Court concluded that “an offence of forgery cannot lie against a person who has not created it or signed it” (Para 20, emphasis mine). What is the reason for doing away with other ingredients, namely, sealing and executing, from the construction of making? And what is the scope of the term “create” which finds no place in the provision? 

The Supreme Court also relied on Md. Ibrahim and Ors. v. State of Bihar and Anr., (2009) 8 SCC 751, (Two Justices' Bench) and inferred from it that “mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant" (Para 22, emphasis mine). The Court in the present case also cited excerpts from Ibrahim which differentiate between execution generally and execution by “impersonating” or “falsely claiming to be authorised or empowered” (Para 23). Significantly, the material facts of Ibrahim were completely different from the case at hand. Ibrahim had a person with a bona fide belief that he had a claim to the property which he sought to convey. Hence, in that case, the ingredients “fraudulently” and “dishonestly” in Section 464 IPC were not satisfied. In fact, the excerpted construction of the provision in Ibrahim goes against the inferences drawn by the Court in the present case. In Ibrahim, the Court stated that, “a person is said to have made a false document, if (i) he made or executed a document claiming to be someone else or authorised by someone else” (Para 11, emphasis mine). Here, the accused person clearly executed a mortgage deed claiming to be authorised by the deceased Doris Victor. Hence, according to this interpretation, he has indeed made a false document. 

In Mir Naqvi Askari v. CBI (2009) 15 SCC 643, bank officials were said to have abused their position and committed various offences to give undue pecuniary advantage to some persons. One of the charges was forgery of valuable security and hence, the Court interpreted the "First" clause of Section 464 IPC to mean “the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made.” The term “falsified” here encompasses all the ingredients of Section 464 excerpted above, and "natural inferences" must not be drawn from the word. Rather, one must go back to the provision. 

In Sheila Sebastian, the Supreme Court endorsed the High Court's reliance on Guru Bipin Singh v. Chongtham Manihar Singh & Anr, 1996 (11) SCC 622, which used Explanation 2 to Section 464 IPC to reason that for forgery, the making of a false document is essential (Paras 5, 25). In that case, the issue was whether an author had forged the writing of a prominent historical figure. There was no contention by either side that the accused author had either made, signed, sealed or executed the writings of the historical figure. Rather, he claimed that already existing writings were by the concerned figure. The facts materially differ from those in Sheila Sebastian. Here, the accused did in fact sign the PoA and sign and execute the mortgage deed relying on the authority which the PoA did not in fact confer since it was not genuine. Further, strictly speaking, Explanation 2 has no relevance whatsoever in the present case. At the time the spurious PoA was drawn, Doris Victor was alive. Hence, the document was not made with the intention that it be believed it was made during the lifetime of the person. Neither was Doris Victor a fictitious person. It is also quite puzzling that the Court relies on this Explanation to arrive at the foregone conclusion that Section 464 IPC is a prerequisite for constructing the offence under Section 463 IPC. Hence, there does not seem to be a “plethora of cases which held that making of a document is different than causing it to be made” and if there are, they have not been referred to by the Court. 


Strict interpretation of penal statutes is one of the core principles of criminal law. The reason for this is two-fold. If the court gives statutes a wider meaning, it would amount to retroactive law making and it would be unfair to convict a person on such a construction of the offence without fair warning. It also helps the courts beneficially interpret the statute in favour of the accused by adopting a narrow construction given the severe sanctions that follow conviction. However, in no way can this empower the courts to indulge in retroactive law making of another kind where they dilute the legislative intent and do away with entire ingredients of the statutory provision in order to benefit the accused. Strict interpretation, after all, demands utmost faithfulness to the statutory text which the Court seems to have lacked in this case.

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