9 Sep 2021 10:41 AM GMT
The Kerala High Court on Friday reserved its orders in an anticipatory bail application filed by a 'fake lawyer', a woman named Sessy Xavier who had impersonated as an advocate without the requisite qualifications.Justice Shircy V heard the parties in detail in today's hearing. Initially, the FIR registered against Xavier had charged her under Sections 417 (punishment for cheating) and...
The Kerala High Court on Friday reserved its orders in an anticipatory bail application filed by a 'fake lawyer', a woman named Sessy Xavier who had impersonated as an advocate without the requisite qualifications.
Justice Shircy V heard the parties in detail in today's hearing.
Initially, the FIR registered against Xavier had charged her under Sections 417 (punishment for cheating) and 419 (punishment for cheating by personation) of the IPC, both of which are bailable offences.
Subsequently, offences punishable under 420 (cheating and dishonestly inducing delivery of property) was added, which is a non-bailable offence.
Advocate Roy Chacko representing the said fake lawyer argued that the non-bailable offence was added to the FIR at a later stage.
Further, the applicant submitted that the Constitution of the country envisages certain privileges to women, indicating Article 15(3). The Counsel also pointed out several special provisions drafted in favour of women, such as Section 46 of CrPC.
Interrupting his submissions, the Court stated that such conditions will be complied with by the investigation agency at the time of the arrest. The Court thereby asked the applicant's Counsel to submit his arguments relating to his case.
The Counsel then pointed out that he was attempting to highlight the fact that there are exemptions for women in the Constitutional scheme.
Moving on, it was argued whether a custodial interrogation is absolutely necessary. Chacko thus urged that an application for a pre-arrest bail can only be denied if the investigation officer presses for custodial interrogation, or if there are chances of the applicant tampering with evidence or influencing witnesses.
Reliance was placed on the Apex Court's decision in Dataram Singh v State of Uttar Pradesh & Anr., where it was reiterated that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions.
The following paragraph of the said decision was quoted in the submissions:
"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. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems."
He relied on a couple of other decisions to emphasise the parameters to be considered before deciding on an anticipatory bail application. He submitted that personal liberty of the accused should not be compromised if custodial interrogation in the matter can be dispensed with.
Senior Government Pleader Sreeja appeared for the State in the matter and submitted that along with all the parameters, the nature and gravity of the offence should also be considered while dealing with a pre-arrest bail application.
She submitted that the offences committed by the applicant were to the society at large and to the legal fraternity in particular. The conduct of the applicant was also to be considered. Accordingly, the State pressed on custodial interrogation in the matter.
During the last hearing, an impleading application was put forth by Advocate B. Pramod, and the same was allowed by the Court.
Today, he stated that the applicant had wrongly contended that she was only acting as a legal intern and not as an advocate.
While producing records contrary to this claim, the Counsel proved that she had appeared in a good number of cases in the capacity of a lawyer before several courts.
An order issued by Sessions Court where the applicant had appeared for the accused, and a report published in Malayala Manorama recording her name as an advocate were produced for the perusal of the Court.
The applicant had contended that she never wore a robe or the bow of an advocate, however, disproving the same, the Counsel produced a photograph of her in the attire of a lawyer.
The Counsel thus argued as such:
"She had an enrollment certificate to become a member of the Bar Association. Where did she get the seal from? Who helped her make the certificate? These aspects have to be investigated because the concerned individuals may give certificates to other people as well."
Sessy Xavier had approached the court seeking anticipatory bail in a matter.
During one of the earlier proceedings, the applicant had said that the entire matter was merely an immature misunderstanding on her part and that there was no malafide motive whatsoever.
When the Counsel for the applicant was making his submissions, he had referred to his client as an Advocate.
Outraged at this, the Court had remarked,
"Don't call her an advocate. She is not a lawyer. Do not use that term in your submissions."
Sessy Xavier had caught the attention of the State after having managed to practice as an advocate for over two years without qualifying for the LL.B degree and enrolling with the State Bar Council.
During her period of practice, she appeared before the court in several matters. As per certain reports, she even got appointed as Advocate Commissioner in few cases.
Reports also suggest that she even contested in the Bar Association election this year and was elected as the Librarian.
While so, the Bar Association received an anonymous letter on July 15 alleging that Xavier had no LL.B degree and enrollment certificate.
On enquiring with the Kerala Bar Council, the authorities of the Bar Association were shocked to note that the enrollment number given by her belonged to another advocate practising at Thiruvananthapuram.
The police have registered a case on the complaint filed by Alappuzha Bar Association Secretary Abhilash Soman claiming that she did not possess the required qualification and that she had presented a fake roll number of the Kerala Bar Council to the association.
The matter took a dramatic turn when she attempted to surrender before the Magistrate in Alappuzha assuming that she would be released on bail. However, upon realising that she was charged with non-bailable offences, she fled the courtroom.
Members of the Alappuzha Bar Association had meanwhile taken a decision not to appear for her before the court.
Case Title: Sessy Xavier v. State of Kerala