Sessy Xavier vs State Of Kerala
2021 Latest Caselaw 19527 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MRS. JUSTICE SHIRCY V.
    FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
                      BAIL APPL. NO. 5868 OF 2021
  CRIME NO.474/2021 OF ALAPPUZHA NORTH POLICE STATION, Alappuzha
PETITIONER/ACCUSED:

            SESSY XAVIER, AGED 27 YEARS
            DAUGHTER OF ISSAC XAVIER, NEENDISSERY, RAMANKARY P.O,
            ALAPPUZHA 689595

            BY ADV ROY CHACKO



RESPONDENT/STATE AND COMPLAINANT:

    1       STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, KOCHI 682031

    2       STATION HOUSE OFFICER
            ALAPPUZHA NORTH POLICE STATION, ALAPPUZHA P.O.PIN-688
            012.

 ADDL.R3    ADV. P.K. VIJAYAKUMAR,
            S/O KESAVAPLAPPALLY, VARIAMPARAMBUMADOM, PARAVOOR,
            PUNNAPRA P.O.ALAPPUZHA-688 004.

            (ADDL.R3IS IMPLEADED AS PER ORDER DATED 06/09/2021 IN
            CRL.MA NO.1/2021)

            SR. PP SMT. SREEJA V

            ADV. B PRAMOD FOR ADDL. R3


     THIS   BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
09.09.2021, THE COURT ON 17.09.2021 PASSED THE FOLLOWING:
 B.A.5868/2021
                                      2




                                    ORDER

Dated this the 17th day of September, 2021

One fine morning the Bar Association, Alappuzha received

an anonymous letter alleging that the petitioner, a lady who is

not a graduate in law and not enrolled as an Advocate before

the Bar Council of Kerala, is practising in the Courts in the

District. Then the Bar Association without delay decided in

setting the law into motion by lodging a complaint. Pursuant to

the complaint forwarded by the Bar Association, Alappuzha,

Crime No. 474 of 2021 has been registered by the North Police

Station, Alappuzha against the petitioner for having committed

offences punishable under Sections 417, 419 and 420 of the

Indian Penal Code. Apprehending arrest in connection with the

said crime, the petitioner has approached this Court with this

application under Section 438 of the Code of Criminal Procedure. B.A.5868/2021

2. The prosecution case in a nutshell are as follows:

The petitioner is a native of Alappuzha. She was

practising as a Lawyer in various courts at Alappuzha for the

last two and a half years with the enrolment number of

another Advocate. She fraudulently approached the Bar

Association, Alappuzha with enrolment number

K/1177/2018, which belongs to an advocate of

Thrivanathapuram and secured membership. She was

regularly appearing before the various courts in Alappuzha

District. She had also submitted applications before the

civil courts and thus her name was also included in the

panel of Commissioners and was appointed as Commissioner

in so many cases. She has also appeared before the

Sessions courts in certain sessions cases for the accused as

State brief. Thus, she was actively and smoothly practising

the profession as an Advocate attached to the Bar

Association Alappuzha even without a law degree. After her B.A.5868/2021

admission as a member, she had contested the election of

the Bar Association and was elected as an office bearer of

the Association. On receipt of the anonymous letter, the

association cross checked matter with the Bar Council of

Kerala and then it was realized that the enrolment number

used by the petitioner actually belongs to an Advocate of

Thiruvananthapuram District and this petitioner had never

enroled as an Advocate before the Bar Council of Kerala.

So, immediately an Executive Committee meeting was

convened and an opportunity was given to her to offer her

explanation by issuing a notice. Though the notice was

served on her, there was no response. Thereafter, the

Secretary of Bar Association had given the First Information

Statement before the police. Pursuant to the same this

crime has been registered against her before the Alappuzha

North Police Station.

B.A.5868/2021

3. Heard Adv. Roy Chacko, the learned counsel for the

petitioner, Adv. B. Pramod, the learned counsel for the

additional 3rd respondent and Smt. Sreeja V, the learned

Senior Public Prosecutor. Perused the records.

4. It is significant to note that the petitioner has put in

black and white that she is not a law graduate. It is

submitted by the learned counsel for the petitioner that as

she lost some papers in the examination she did not

complete her LL.B course and due to her poor financial

circumstances at home she could not successfully

complete her course. Then, she joined as a law Intern in

the office of an Advocate at Alappuzha and attended courts

regularly at Ramangiri and Alappuzha, but that was without

wearing the attire of an Advocate. Later due to the

compulsion of certain friends in the Bar Association at

Alappuzha, she submitted nomination to contest the

election of the Bar Association for the year 2020-2021. B.A.5868/2021

Though, she has not been admitted as a member of the Bar

Association, her nomination was accepted and she won the

election. In fact, she has not committed any offence as

alleged by the prosecution. No offence is attracted so as

to have her custody by the police to proceed with the

investigation of the case, is the argument advanced on

behalf of her.

5. Per contra, the learned Public Prosecutor strenuously

opposed the application contending that the petitioner who

has not even completed her graduation in law, committed

cheating by impersonation by producing documents with the

enrolment number of an Advocate of Thrivanathapuram

and fraudulently obtained membership in the Association

and thereafter started the profession of an Advocate, as if

she was enroled as an Advocate before the Bar Council of

Kerala. She regularly appeared before various courts at

Alappuzha for about two and half years till filing of the B.A.5868/2021

compliant against her. She even contested cases before the

Sessions Courts as State Brief and obtained orders from

various Courts appointing her as Advocate Commissioner

and submitted reports before the courts. According to the

prosecution, in short she has cheated the District Judiciary,

Advocates as well as the entire public and therefore the

offences alleged against her are no doubt grave and

serious in nature and the prosecution has to probe into the

details so as to collect the entire materials to proceed with

the investigation of the case with her in custody. Hence,

granting of pre-arrest bail is vigorously opposed by the

learned public prosecutor.

6. The Additional 3rd respondent, who is a member of

the Bar Association, Alappuzha has been impleaded as per

the order in Crl.M.A. No. 1 of 2021. He has also opposed

the application with all vigour contending that the petitioner

has played fraud on the entire legal fraternity by appearing B.A.5868/2021

before various courts with the enrolment number of another

Advocate of Thiruvananthapuram. It is further pointed out

by the learned counsel that she used to appear before the

courts in the prescribed uniform of a lawyer and that the

submission of the learned counsel for the petitioner that she

never used the white bands and Advocates' gown is

absolutely incorrect. She was actively participating in all

activities of the Bar Association. She secured membership in

the Association by producing false documents with the intent

to deceive as she did not possess an enrolment certificate.

The investigating agency has registered the case against her

only under Sections 417, 419 and 420 of Indian Penal Code.

But the offences committed by her includes offences under

Sections 416, 465, 468 and 473 of Indian Penal Code as well

as under Section 45 of the Advocates Act, 1961.

7. I have considered the rival submissions of the

parties in detail. The petitioner is a young lady aged only 27 B.A.5868/2021

years. It is an admitted fact that she has not even

completed her course in LL.B, though she was a student at

Law Academy Law College at Thiruvananthapuram for a

short period. She has not obtained a degree in Law. As

mentioned above the definite case of the petitioner is that

she never appeared as an Advocate or attended the courts

as an Advocate wearing the uniform prescribed for a lawyer.

But she joined only as a law intern in the office of an

Advocate at Alappuzha. Apparently the said contention

appears to be a falsehood by Annexure R3(a), the copy of

a judgment in Sessions Case No.489 of 2013 disposed of by

the learned Additional Sessions Judge-III, Alappuzha on

03.03.2021. Annexure. R3(a) indicates that this petitioner

had appeared and contested as the defence lawyer for

the accused Nos. 1 to 5, who faced trial before the

Additional Sessions Court- III, Alappuzha. Annexures R3(b)

and R3(c) are the news items published regarding the B.A.5868/2021

acquittal of those accused by the learned Additional

Sessions Judge in the above referred case. In the news

item also her name is seen mentioned as the Advocate who

appeared for the accused. Annexure R3(d) is the notice

published by her when she contested the election to the Bar

Association, soliciting support and help from the members of

the Bar Association. In that notice also, her name is shown

as "Adv. Sessy Xavier". As admitted by her in her statement,

she won the election as an office bearer of the Bar

Association for the year 2020-2021 and thus turn out to be

a member of the Executive Committee of the Advocates

Association of Alappuzha.

8. Before proceeding further, it is useful to refer to

certain provisions of the The Advocates Act, 1961 (for short

'the Act'). The Act deals with the law relating to legal

practitioners which extend to the whole of India. Section

24 of the Act deals with the provision where persons are B.A.5868/2021

admitted as Advocates on a State roll. Section 24 (1) (c)

says that a person who has obtained a degree in law is

qualified to be admitted as an Advocate, if he fulfills the

conditions narrated therein. Section 25 deals with the

authority to whom an application for enrolment has to be

submitted. Section 26 deals with disposal of an application

for admission as an Advocate. Therefore, only a person

holding a Law Degree is entitled to get his name enroled in

the roll as an Advocate and only after enrolment as an

Advocate, one could practise the profession of law as an

Advocate as reflected in Section 29 and 30 of the Act.

Here, admittedly, this petitioner is not holding a degree in

law and so she never enroled as an Advocate before the

Bar Council of Kerala, till date.

9. But as mentioned earlier, prima facie it appears that

she got admission as a member of the Bar Association by

furnishing the enrolment number of an Advocate of B.A.5868/2021

Thiruvananthapuram. Only the members of the Bar

Association can contest an election and she contested the

election and was successful in her attempt.

10. After obtaining membership in the Bar Association,

she appeared before the various courts in Alappuzha district

as an Advocate. Advocates are permitted to represent or

even appear before a court of law only in uniform. Her case

that she had only joined the office of a Senior Advocate as

law intern appears to be a false statement as revealed from

the records made available before this court.

11. Here, the main question that falls for determination

is whether she is entitled to get an order of pre-arrest bail in

the case. The learned counsel for the petitioner has pointed

out that she being a member of a poor family, out of her

immaturity and lack of wisdom appeared in the courts and

contested the election of the Bar Association as her

nomination was accepted by the Association. She only B.A.5868/2021

joined as a law intern attached to the office of a senior

lawyer and she never functioned as a lawyer and so her

custodial interrogation is not at all required, is the definite

stand of the learned counsel for the petitioner.

12. In Dataram Singh v. State of Uttar Pradesh

((2018) 3 SCC 22) cited by the learned counsel for the

petitioner the Apex Court observed as under :

''..... A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty..................'' Further, it is observed that

''........Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use ) is an exception.....'' ''4. To put it shortly, a humane attitude is required to be adopted by a Judge, while dealing with an application for remanding a suspect or an accused person to police custody or

judicial custody........'' B.A.5868/2021

13. The decision of the Supreme Court in Nathu Singh

v. State of Uttar Pradesh and Ors. Ompal Singh v.

State of Uttar Pradesh and Ors. (AIR 2021 SC 2606) has

also been relied on by the learned counsel to argue that the

petitioner is entitled for pre-arrest bail as it was observed

by Apex Court while referring to the power under Section

438 Cr.P.C in paragraph 25 as follows:

"25. However, such discretionary power cannot be exercised in an untrammeled manner. The Court must take into account the statutory scheme under Section 438 Cr.P.C., particularly, the proviso to Section 438(1) Cr.P.C. and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant. Therefore, such an order must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority. Such an order must be a reasoned one."

14. It is well settled that while considering an

application for bail the court has to take into consideration B.A.5868/2021

the nature and gravity of the accusation levelled against

the accused, the larger interest of the public, reasonable

apprehension of tampering with the evidence, likelihood of

absconding etc. In the instant case, prima facie, the

petitioner has not only cheated the Bar Association,

Alappuzha, the District judiciary of Alappuzha, the general

public, but also the entire Judicial system. As observed

above, she is not a law graduate and she never enroled as

an advocate before the Bar Council of Kerala, but

clandestinely produced the enrolment number of another

Advocate and the said number was exhibited by her as her

roll number in all her activities as an Advocate before the

courts in Alappuzha District and fraudulently used that

number for various purposes as if she had enroled as an

Advocate with the roll number. Doubtless that the gravity of

the offences alleged against her is grave and serious in

nature. Offences alleged is all the more grave as she B.A.5868/2021

committed fraud on the Courts and Judicial system. The

allegations leveled against her are highly serious and

sensitive having grave repercussions in the society. The

illegal activities adopted by her that too before the court of

law has to be dealt with an iron hand. If leniency is taken,

just considering the fact that she is a young lady, it will be

a shame for the whole Judicial system and would shake the

confidence of the public in judicial system.

15. The Lawyers' profession is considered to be one

of the noblest profession. Lawyers have to play a pivotal

role in the administration of justice as only with their

sincere and purposeful effort and assistance the Courts could

administer justice properly. They owe onerous responsibility

and duty towards Courts and they are considered as the

officers of the Courts. Their first responsibility is towards

their clients and then to the courts. So, misrepresenting or

presenting as an Advocate before a client and obtaining B.A.5868/2021

his/her brief as if she is an Advocate, itself would amount

to cheating towards the public. As observed above, prima

facie the materials so far gathered by the investigating

agency indicate that, she has cheated the Bar Association

Alappuzha, the clients approached her with brief, the entire

judiciary especially the District judiciary, Alappuzha and the

general public.

16. It is prima facie evident that she had submitted an

application before the Bar Association with the enrolment

number of another Advocate for admission as a member of

the Association. The minimum requirement to become a

member of a Bar Association is to hold a Law Degree and

then enrolment as an Advocate before the Bar Council, as

Bar association is the association of Lawyers. Here, prima

facie, it is clear that this petitioner is not having any such

qualification and she had deceived the Bar Association,

Alappuzha by submitting a document fraudulently and with B.A.5868/2021

dishonest intention secured the membership. After

obtaining the membership in the Bar Association, she started

to appear before the court of law and continued the same

for the last two and a half years and also contested in the

election held by the association and elected as an office

bearer. As she functioned as the librarian of the Bar

Association she was in charge of the records of the

association. At this juncture, I would like to add that it is

always advisable that the Bar Associations before admitting

a new member to cross check and verify with the Bar

council, so that such incidents can be prevented in future.

17. As per the FI Statement of the informant, the

application submitted by her for admission before the

association was also found missing from the records along

with some other applications submitted on the same day.

The investigating agency has to trace out the same along

with the other required documents. From the materials so B.A.5868/2021

far collected, it could be seen that there is a strong case

against this petitioner to be proceeded with. The

investigating agency is supposed to go deep into all those

matters by exercising their skill so as to ascertain what are

the offences committed by this petitioner apart from the

offences she has been booked by the prosecution. In fact, I

find merit in the argument advanced by the learned counsel

for the 3rd respondent that apart from the offences for which

she has been booked as such, the illegal activities committed

by her makes out some more offences under the Indian

Penal Code as well offences under the Advocates Act, 1961.

To probe into those details, definitely custodial interrogation

of this petitioner appears to be essential and inevitable. If

she is granted bail, the possibility to abscond also cannot be

ruled out. The argument of the learned counsel for the

petitioner that she is coming from a poor financial situation

and a young lady or she is immature etc are not at all B.A.5868/2021

justifiable reasons or grounds to exercise the discretion of

this Court under Section 438 of the Code of Criminal

Procedure in her favour. It is well settled by a plethora of

decisions of the Supreme Court that the discretion of the

court must be exercised with care and circumspection,

depending on circumstances justifying its exercise. More so

law applies to everyone equally. She has to surrender

before the investigating officer forthwith or else she has to

be arrested to proceed with the investigation of the case.

Therefore, I find that this petition deserves a dismissal and

I prefer to do so.

Dismissed.

Sd/-

SHIRCY V JUDGE

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