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.
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