Madras High Court
K.S.Ilangovan vs High Court Of Judicature At Madras on 5 January, 2022
W.P.No.20119 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.No.20119 of 2021
K.S.Ilangovan .. Petitioner-
in person
Vs
1.High Court of Judicature at Madras,
rep. by the Registrar General,
Madras High Court,
Tamilnadu.
2.Government of Tamilnadu,
rep. by its Chief Secretary,
Fort St. George,
Tamilnadu.
3.Union Territory of Puducherry,
rep. by its Chief Secretary,
Chief Secretariat,
Puducherry. .. Respondents
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W.P.No.20119 of 2021
Prayer: Petition filed under Article 226 of the Constitution of India
praying for a writ of declaration, declaring Rule 12(4), Rule 13, Rule
27(4), (5) and (11), Judicial form No.73 and Rule 93 of the Criminal
Rules of Practice, 2019 as ultra vires to the Constitution.
For the Petitioner : Mr.K.S.Ilangovan
Petitioner-in-person
For the Respondents : Mr.B.Vijay
for respondent No.1
: Mr.R.Shunmugasundaram
Advocate-General
assisted by
Mr.Hasan Md. Jinnah
Public Prosecutor
for respondent No.2
ORDER
(Order of the Court was made by
the Hon'ble Acting Chief Justice)
By this writ petition, challenge to the constitutional validity of
Rule 12(4), Rule 13, Rule 27(4), (5) and (11) and Rule 93 of the
Criminal Rules of Practice, 2019 (for short, “Rules of 2019”) has been
made.
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W.P.No.20119 of 2021
2. The petitioner, appearing in person, has made a reference to
Section 4 of the Oaths Act, 1969 (for short, “Act of 1969”) for
challenge to Rule 12(4) of the Rules of 2019. It is submitted that Rule
12(4) of the Rules of 2019 mandates an application under Section 438
Cr.P.C. to be accompanied by a sworn affidavit of the applicant. The
Rule aforesaid offends Section 4 of the Act of 1969. Thus, it is to be
struck down. A reference to the judgments of the Patna High Court in
the case of Ramnath Sahni v. The State of Bihar, Criminal Appeal
(DB) No.303 of 2015, decided on 22.04.2015 and the Karnataka
High Court in the case of J.Jaikumar, Major v. Yogesh Lemichwal,
Major, reported in 1997 STPL (LE-Crim) 4887 Kar have been
made.
3. To appreciate the arguments of the petitioner, appearing in
person, we are quoting Rule 12(4) of the Rules of 2019 as well as
Section 4 of the Act of 1969:
“12. Bail in non-bailable cases.-
(1) ...
(2) ...
(3) ...
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W.P.No.20119 of 2021
(4) Application for relief under section 438 of the Code
shall be accompanied by a sworn affidavit of the
applicant.”
“4. Oaths or affirmations to be made by
witnesses, interpreter and jurors.-
(1) Oaths or affirmations shall be made by the
following persons, namely:-
(a) all witnesses, that is to say, all persons who
may lawfully be examined, or give, or be
required to give, evidence by or before any court
or person having by law or consent of parties
authority to examine such persons or to receive
evidence;
(b) interpreters of questions put to, and evidence
given by, witnesses; and
(c) jurors:
Provided that where the witness is a child under twelve
years of age, and the court or person having authority
to examine such witness is of opinion that, though the
witness understands the duty of speaking the truth, he
does not understand the nature of an oath or
affirmation, the foregoing provisions of this section and
the provisions of section 5 shall not apply to such
witness; but in any such case the absence of an oath
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or affirmation shall not render inadmissible any
evidence given by such witness nor affect the
obligation of the witness to state the truth.
(2) Nothing in this section shall render it lawful to
administer, in a criminal proceeding, an oath or
affirmation to the accused person, unless he is
examined as a witness for the defence, or necessary to
administer to the official interpreter of any court, after
he has entered on the execution of the duties of his
office, an oath or affirmation that he will faithfully
discharge those duties.”
4. Rule 12 is in Chapter III of the Rules of 2019. As per the
said Rules, for bail in a non-bailable offence, the application under
Section 438 Cr.P.C should be accompanied by a sworn affidavit. The
provision of Section 4 of the Act of 1969 prescribes oaths or
affirmations to be made by witnesses. It is not for an affidavit.
Section 4 provides that, in criminal matters, an oath or affirmation to
the accused person would not be administered unless he is examined
as a witness. The provision aforesaid is for the oath or affirmation of a
witness and unless the accused stands as a witness, the oath or
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W.P.No.20119 of 2021
affirmation is not required. The sworn affidavit required under Rule
12(4) of the Rules of 2019 is not an oath or affirmation before the
Court. Thus, Rule 12(4) of the Rules of 2019 is not hit by Section 4 of
the Act of 1969.
5. The petitioner appearing in person has made a reference of
the judgment of the Patna High Court in the case of Ramnath Sahni
(supra), where in paragraph 7, the Patna High Court recorded its
finding that insistence on filing of affidavits in criminal cases, including
bail petitions, amounts to violation of fundamental rights of the
persons guaranteed under Articles 21 and 22 of the Constitution of
India. However, we find no discussion as to how the fundamental
rights would be infringed for filing an affidavit. The Patna High Court
has made an observation that if affidavit is to be filed, it would lead to
corruption but the basis for such presumption has not been given.
6. Yet another judgment referred by the petitioner is in the case
of J.Jaikumar, Major (supra) rendered by the Karnataka High Court.
The judgment therein is not on the issue referred by the petitioner, but
to clarify that the accused cannot be compelled to administer oath or
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affirmation as witness because he cannot be compelled to be a witness
in the matter unless he himself comes as a witness or defence witness.
The aforesaid proposition was laid while considering the issue as to
whether in criminal cases a sworn affidavit should be insisted as in civil
litigation. In any case, the interpretation of Section 4 of the Act of
1969 is not to the effect that an affidavit cannot be insisted from the
accused person. Moreover, the judgment in the case of J.Jaikumar,
Major (supra) upheld the requirement of filing of affidavit by the
person approaching the High Court in the criminal cases. It is apposite
to reproduce the following observation:
"9. Further, it has to be seen that the requirement
under Chapter X of the High Court Rules is made
applicable also to the criminal cases like the criminal
petitions, criminal appeals and criminal revision
petitions in the High Court. The object of requiring
filing of affidavit of the person approaching the High
Court in these criminal cases is to bind him on oath or
affirmation as to the contents of such application like
the affidavit regarding explanation of delay, affidavit
praying for interim order, etc. By no stretch of
imagination it can be held that by swearing to
such affidavit the accused person is made to give
a statement on oath amounting to incriminatory
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W.P.No.20119 of 2021
statement regarding the crime with which he has
been charged or has been found guilty by the
Courts below. In view of these, I do not think
that the contentions raised by the counsel for the
petitioners are maintainable."
[Emphasis supplied]
7. In the light of the observations made above, we are of the
view that the requirement of filing of an affidavit by the applicant
seeking bail under Section 438 Cr.P.C. is to bind him on oath or
affirmation as to the contents of such application and not otherwise.
8. At this juncture, it needs to be observed that the Rules of
2019 were framed by the High Court after taking into consideration the
suggestions from different subordinate courts. In many cases, it was
found that without the knowledge of the accused, application under
Section 438 Cr.P.C. was filed and after its dismissal, the issue was
raised about the competence of a lawyer to file an application. To stop
such practice, Rules of 2019 were framed and filing of sworn affidavit
would in no way affect the rights of the accused or his liberty under
Article 21 of the Constitution of India. For submission of the affidavit,
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W.P.No.20119 of 2021
the accused is not required to appear before the Court, but before the
Oath Commissioner and such appearance before the Oath
Commissioner cannot be said to be taking away the liberty of the
accused. If the application under Section 438 Cr.P.C. is filed along
with the sworn affidavit of the accused, the plea that the application
was not filed by him cannot be raised in case application is rejected.
In any event, it is a practice that advocate defending an accused in
custody can file a memorandum of appearance instead a power to
appear on behalf of the accused. In case of memo by the advocate,
the necessity remains that the application has been filed on the
instruction of the accused and it can be fortified by an affidavit filed
along with the application. In view of the above, Rule 12(4) of the
Rules of 2019 was brought for a purpose and is not otherwise
offending Section 4 of the Act of 1969. Thus, we do not find substance
for challenge to Section 12(4) of the Rules of 2019.
9. Challenge to Rule 13 of the Rules of 2019 has also been
made. Rule 13 of the Rules of 2019 reads as under:
“13. Surety. - An advocate shall not be accepted as
surety, unless the accused is his blood relative.”
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10. Rule 13 of the Rules of 2019 enjoins an advocate from being
a surety, unless the accused is his blood relative. The petitioner,
appearing in person, has made a reference to the Bar Council of India
Rules, 1975 (for short, “Rules of 1975”), more specifically Rule 10, to
show that the Bar Council has already stipulated a rule in that regard,
thus, Rules of 2019 was not required again to restrain an advocate to
stand as a surety. To appreciate the argument of the petitioner, Rule
10 of the Rules of 1975 is also quoted herein below:
“10. An Advocate shall not stand as a surety, or certify
the soundness of a surety for his client required for the
purpose of any legal proceedings.”
11. Rule 10 of the Rules of 1975 restrains an advocate from
being a surety, or certifying the soundness of a surety for his client
required for the purpose of any legal proceedings. Rule 10 has two
parts. First part, restrain the advocate to stand as a surety. The Rule
aforesaid was brought by the Bar Council of India also to govern
advocates and Rule 13 of the Rules of 2019 is almost similar to Rule
10 of the Rules of 1975. We do not find any illegality in restraining an
advocate from being a surety, unless the accused is his blood relative.
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12. An advocate is identified for the profession and for which the
registration is given by the Bar Council of India. He is required to
conduct himself by the Rules provided for the conduct of profession
and thereby not to involve himself in any other activity which
diminishes the status of the profession and the advocate. The
petitioner in person could not show how the legal right of an advocate
is affected if he is restrained from standing as a surety. Rule 10 of the
Rules of 1975 has been brought for maintaining standards of
professional conduct and etiquette. An advocate would not generally
stand as a surety unless a blood relative is involved. An advocate
should concentrate on professional work and to conduct as per
Conduct Rules. We do not find any infringement of right of an
advocate so as to declare Rule 13 of the Rules of 2019 as ultra vires.
In view of the above, we do not find that the prayer made by the
petitioner to be sustainable and, therefore, the challenge to Rule 13 of
the Rules of 2019 is also not accepted.
13. The other Rule challenged by the petitioner is Rule 93 of the
Rules of 2019. Rule 93 of the Rules of 2019 is quoted for ready
reference:
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W.P.No.20119 of 2021
“93. Magistrate taking action under section 144 of the
Code to communicate the order to the Civil Court.-
Whenever a Magistrate takes action under section 144
of the Code or any analogous provisions of law, he
should immediately communicate a copy of his order to
the Civil Court having original jurisdiction over the
locality to which his proceedings refer. Similarly, the
Civil Court will communicate to the Magistrate having
local jurisdiction, any injunction issued by it with
reference to matters which would fall within the scope
of section 144 of the Code.”
14. The petitioner, appearing in person, submitted that by
sending a copy of the order passed under Section 144 of Cr.P.C. or any
analogous provisions of law to the Civil Court, the right of a person
would be affected to pursue remedy before the Civil Court. In view of
the above, a prayer is made to strike down Rule 93 of the Rules of
2019. We do not find any illegality in Rule 93 of the Rules of 2019, as
it only stipulates communicating a copy of the order to Civil Court on
passing an order of action under Section 144 Cr.P.C. By the aforesaid
arrangement, the right of the parties are not affected. Rather, it is to
advance the cause of justice, because non-communication of the
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W.P.No.20119 of 2021
action taken by the Magistrate Court under Section 144 of Cr.P.C. to
the Civil Court may lead to contradictory action by the Civil Court and
any attempt to suppress the material facts can be exposed. By
incorporation of Rule 93 of the Rules of 2019 no rights are affected.
We, therefore, do not find any ground to accept the challenge to the
validity of Section 93 of the Rules of 2019.
15. The argument for challenge to Rule 27(4) (5) and 11 of
Rules of 2019 has not been made.
16. For the foregoing reasons, we do not find any ground to
declare the Rules of 2019 under challenge to be ultra vires the
Constitution and, accordingly, the writ petition fails and it is dismissed.
No costs.
(M.N.B., ACJ) (P.D.A., J.)
05.01.2022
Index : Yes/No
bbr
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W.P.No.20119 of 2021
To:
1.The Registrar General,
High Court of Judicature at Madras,
Madras High Court,
Tamilnadu.
2.The Chief Secretary,
Government of Tamilnadu,
Fort St. George,
Tamilnadu.
3.The Chief Secretary,
Union Territory of Puducherry,
Chief Secretariat,
Puducherry.
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W.P.No.20119 of 2021
M.N.BHANDARI, ACJ
AND
P.D.AUDIKESAVALU,J.
bbr
W.P.No.20119 of 2021
05.01.2022
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