Sheila Sebastian v. R. Jawaharaj - A Postscript

This week, the Blog hosted a guest post by Sregurupriya critiquing the recent Indian Supreme Court decision in Sheila Sebastian [Crl Appeal 359-60 of 2010]. It is an interesting decision, which could be quite important or yet another citation, and here I join the debate that Sregurupriya started.  

Factual Recap

Jawaharaj and Miss X (a cousin of the Scotland Yard Enigma) went to Narayanan Pillai to get a Power of Attorney [PoA] made in 1997. A PoA is a legal document that effectively says that Person B has been authorised to perform certain legal acts / duties, on behalf of Person A. Here, the PoA was authorising Jawaharaj to perform certain acts for Miss X. On the document, Miss X signed off as one Doris Victor - who she was not - and once the PoA was made it was registered with the authorities. It meant that Jawaharaj could perform various legal acts in the name of Doris Victor, including selling her property. Which is exactly what he tried to do soon after, by entering into a Mortgage Deed with Rajapandi for Rs. 50,000/-. We don't know how, but soon the real Doris Victor got to know about this and an FIR dated 14.03.1998 was registered on her complaint. After the police finished investigation, it filed a Charge-Sheet against both Jawaharaj [A-1], and Rajapandi [A-2] for having cheated Doris Victor. The creation and use of the PoA to transfer her property was punishable under Sections 420, 423, and 424, of the Indian Penal Code 1860 [IPC]. Our imposter Miss X could not be found, so other offences of cheating by impersonation were presumably not added. The Court of the Magistrate where the case went for trial added offences of forgery punishable under Section 465 IPC. Ultimately, both accused were only convicted of the forgery offence and not for cheating Doris Victor. An appeal was filed with the Sessions Court, which upheld convictions. This was then reversed by the High Court, and the victim approached the Supreme Court appealing that decision acquitting both accused.

Procedural Doubt and Stray Observations?  

The victim filed an SLP before the Supreme Court and it was first taken up in August 2008. That is before the Criminal Procedure Code gave victims a right to appeal against acquittals (recently the subject of some discussion on the Blog). Does that mean the Court was allowing such appeals in the guise of an SLP even though no statutory right to appeal existed? The SLP was converted into an appeal in 2010, but does that take away this initial hurdle? I will hopefully explore that question more generally in subsequent posts.  

I gave the lengthy factual background because it matters for appreciating, and critiquing, observations that the Two Justices' Bench made in Sheila Sebastian about the investigation and prosecution. At Paragraph 28, the Court had this to say: 

"[This case] is a classic example of poor prosecution and shabby investigation which resulted in the acquittal of the accused. The Investigating Officer is expected to be diligent while discharging his duties. ... The Investigating Officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA."

It is not unusual to find cases fall apart at trial (More than 50% of trials end in acquittal as per the last NCRB data release), so these observations would not be out of character. Except, it doesn't seem that the case here suffered because of lapses by the investigation. I haven't been able to trace the High Court decision, but recall that the police never foisted a forgery charge. It did not allege that there was a forgery. Instead, it foisted Section 423, that the PoA contained false statements "relating to the consideration for such transfer ... or relating to the person or persons for whose use or benefit it is really intended to operate", which it did. So, if the police never made a forgery case, why is it being blamed for it falling apart?

Strict Interpretation and Section 464 IPC

Which brings me to the forgery allegations that were the focus of Sregurupriya's post. She critiqued the Court's move to differentiate causing a false document to be made from making a false document (Paragraph 25) which justified the acquittals because neither Jawaharaj nor Rajapandi made a false document as under Section 464 IPC. The Court held that such a reading was the only one warranted by a "strict interpretation" of the provision - a rule that requires a Court to read ambiguities in a penal statute in the light most favourable to the accused.

First, a point that was left out in the earlier post. The Court considered Explanation 2 to Section 464 IPC material for the case. This explanation talks about creating a false document in the name of a fictitious or dead person, for someone to believe that it was made by a real person. But, we know that Doris Victor was a real person who was very much alive at the time the documents were created. So how would that explanation be of any relevance? Miss X was pretending to be Doris Victor, which is not the same thing (See Section 416 IPC). Is the Court now telling us that impersonating a real person for making a document amounts to creating it in the name of a non-existent person? 

Moving on to buttress the critique made in the post. The Court packs its reasoning in two paragraphs - 25 and 26 - and it is difficult to untangle the many strands. But once we do so, some logical flaws clearly emerge. In Paragraph 25 the Court holds that "a charge of forgery cannot be imposed on a person who is not the maker of the same", but that does not tell us anything besides repeating what Section 463 already says: forgery requires making a false document. The peculiar problem seems to come from Section 464 which explains what is "making" a false document: it says that a person "makes a false document" by making it! No wonder we are stuck in an endless loop. What Sheila Sebastian tells us is that putting your signatures on documents you know to be false that you helped create and then executing them is not making a false document. If that isn't, then what is? And, to echo Sregurupriya, what happened to the other ways of making false documents: signing, sealing or executing them?

Conclusion

Sheila Sebastian makes some additions to the law on forgery as it exists. Sregurupriya's post, and this short postscript, argue that these additions are far from desirable. The truncated reasoning behind the conclusions leaves many questions begging. That, in the long run, is a recipe for chaos across as trial courts across the country will now have to grapple with understanding when can an accused person sign and execute a false document, but still not make it. 

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. 

Conclusion 

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.

De-Facto Complainants, Further Investigations, and The Curious Reference in Jagdish Patni v Nikita Patni

A few days ago, a Two-Justices' Bench of the Supreme Court passed what seemed an innocuous order referring the petition in Jagdish Patni v Nikita Patni & Ors [SLP (Crl) 3806/2018)] to a bench of higher-strength. This was because the Justices thought that an earlier Supreme Court decision - Reeta Nag  [(2009) 9 SCC 129, Two Justices' Bench] - might need re-consideration. In this post, I briefly cover that earlier decision and the problem that the Supreme Court alluded to. I argue that there is, frankly, no problem at all, and the petition should have been dismissed for more reasons than one. 

Further Investigations and De-Facto Complainants: What is the Law?

When police investigate a case under the Criminal Procedure Code, 1973 [Cr.P.C.], the investigation ends with a Final Report under Section 173. When this suggests allegations have enough basis to be tried in court, this Report is colloquially called a Charge-Sheet. But that is not the end of the matter. Section 173(8) Cr.P.C. makes it clear that even after filing of a Report, "further investigation" into the allegations can take place. And police file subsequent reports detailing what that further investigation revealed. As always, problems emerge when we probe further for details. What all can come within "further" investigation - can the same documents / witnesses be considered again? Are there no limits to this power of continuing investigations? Must the police file an application, or can the Magistrate herself direct further investigation? What about the victim / informant? Here, I am only concerned with two of these themes and their intersections: till when can a police do "further" investigations, and how can this be triggered. For a discussion on the scope of what can happen in further investigations, I'd encourage reading Vinay Tyagi v. Irshad Ali [(2013) 5 SCC 762].

The Supreme Court has clarified that further investigations can happen at any stage before judgment, and that triggering such investigations is not an exclusive power with the police. A magistrate on her own, or on an application by an aggrieved party, can also direct the police to further investigate a case. But, importantly, there is no right to further investigations: it is another area where the court has to exercise discretion, and it considers different considerations in deciding whether granting that permission makes sense. Basically, the more advanced a case gets, the more difficult it is to go back and investigate. This makes ample sense, as revisiting a case causes more delays in what is already a slow system of justice. 

The Court has made the time-element relevant in another sense: once the case crosses certain stages, a magistrate, and the aggrieved person, lose their ability to trigger a hearing for considering further investigations. The Court has held that a magistrate loses the right to trigger further investigations after taking cognizance. So, after deciding that there is enough material warranting the case proceed to trial, the magistrate on her own cannot turn back the clock and seek further investigations. For an aggrieved party, the starting-line is not as clear. But one point of no return was clearly identified in Reeta Nag by the Court. There, it held that an aggrieved person cannot seek further investigation once charges have been framed. After this stage, the only way left to trigger this process was if the police approach a court. 

Again, this makes sense. It is clear under the Cr.P.C. that there are other avenues that allow a court to arraign other defendants or bring in new evidence once the trial has begun, either on its own or on an application by an aggrieved party. Under Section 319, Cr.P.C., a court has broad powers to arraign new defendants it finds sufficient grounds. Equally broad powers are vested in a court to take in fresh evidence after the start of a case under Section 311.  

The Petition in Jagdish Patni and the (Mis)Perceived Legal Issue

Prakash Patni died on 27.05.2013. His father, Jagdish Patni, lodged a complaint with the police which resulted in registration of a First Information Report. The subsequent police investigation concluded his death was a suicide, and alleged that three defendants - his wife, mother-in-law, and a maternal aunt - abetted his suicide and recommended a case under Sections 306 read with 34, IPC. After cognizance was taken, Jagdish Patni moved an application on 16.06.2015 for "further investigation", at at time when the court was hearing arguments on charge. On 27.07.2015, the court rejected the plea for discharge by the defendants. Then, on 12.10.2015, the court passed an order dismissing the application for further investigation. This was challenged before the High Court, which affirmed the order and relied on Reeta Nag to do so. Challenging that order, Jagdish Patni came to the Supreme Court. And on May 7, a Bench comprising of Justices Chelameshwar and Kaul were of the view that relying upon Reeta Nag was a problem. The daily order notes: 

"The High Court dismissed the case of the petitioner by the impugned order relying on a judgment of this Court reported in Reeta Nag (citation omitted) wherein it was held that the criminal court is not competent to direct further investigation at the instance of de-facto complainant. Further, that judgment is rendered on the basis of the law as it existed prior to the judgment. By an amendment Act V of 2009 which came into force on 31st December 2009, a right of appeal is created in favour of a victim against order of acquittal under the proviso of Section 372 Cr.P.C. In light of the above-mentioned amendment, the scheme of Section 173 CrPC, in our view, requires a further examination." 

In my view, the Court gets it wrong here on multiple levels. First, Reeta Nag did not say this at all, as I have discussed above. De-facto complainants continue to have a right to seek further investigations, as long as it is before arguments on charge. In fact, this position was clarified in 2017 by the Court in Amrutbhai Patel [(2017) 4 SCC 177] nine years after the victim-rights amendment was passed, and curiously that decision is not cited by the Court. Moreover, assuming that the Court knew of this, and wanted to remove this limitation on the right of de-facto complainants, one struggles to see a connection between granting victims a right of appeal against acquittals and a right to seek further investigation after cognizance has been taken. Victims already had a panoply of rights, including the right to seek further investigations, but did not have a right to appeal. This was the lacunae being filled, but instead, the Court has put the cart before the horse in the extracted order. 

But the biggest reasons are pragmatic. Nobody needs reminding of how serious the problem of delays is. This is apparent in Jagdish Patni itself, as the FIR was registered in 2013, and according to the case status website charges have not even been framed yet. As I have argued previously, a large part of the reason for this is the Supreme Court itself. How? Because the Supreme Court, over the years, has repeatedly transformed routine administrative stages into full-blown hearings, purportedly in the interests of justice. This has led to a strange reality where the Court itself creates avenues for more delays, and then criticises that the system for delay. Sensibly, previous decisions created some limits on the right of aggrieved parties to seek further investigations. There was no marginal benefit gained at the cost of the additional delays this step invited. After all, the benefits accruing by this process were already being conferred by existing provisions, i.e. Sections 319 and 311. By reversing this, the Court would only drive another nail in the coffin of our tedious criminal process. 

Conclusions

Having seen how a SLP is heard, I would not find it unthinkable that the nuances of a legal issue evade a Bench of Supreme Court that is pressed for time. But the Court was not hearing the petition in Jagdish Patni for the first time on May 7; it was a week after it had first taken up the case as notice was issued on May 1. In that week, surely the able support of judicial clerks would have seen this obvious point that I raise. There are two reasons then, why this petition moved forward. The first reason is that, well, somehow owing to the burdens of work this legal point did elude everybody. The second is that the Justices knew of it but wanted to change the legal position. I only hope it is not the latter possibility.