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Filing signed/attested Vakalatanama etc in bail matters not mandatory when family resides outside Delhi and applicant is in jail: Delhi HC

Aditi Singh

The Delhi High Court has directed that in bail matters, there will be no insistence on filing of the signed/attested vakalatanama, signed and attested affidavits or applications where the applicant is in jail and/or of the family members of the applicant when they reside outside Delhi. (Hansraj vs State)

Physically signed and attested vakalatanama of a person, who is in custody or not residing in Delhi will not be insisted upon by the Facilitation Centre in any of the District Courts in Delhi nor will bail applications be rejected only for this reason.
Delhi High Court

The order was passed by a Single judge Bench of Justice Asha Menon.

The Petition concerned a 23 year old boy (Petitioner) who belonged to a very poor family and was in judicial custody for more than ten months.

He was arrested in connection with a FIR under Sections 364A/365/506/323/34 of the IPC, registered at P.S. Dwarka North, New Delhi.

The Petitioner had applied for bail through the online facility provided at the Dwarka Courts. However, the online filing was rejected by the Facilitation Centre of Dwarka Courts on two grounds, namely, that the Vakalatnama was not duly signed and attested either by the accused himself or his family members, and secondly, that the application was neither bookmarked nor in searchable format.

The Petitioner's grievance before High Court was that since the counsel resided in Gurugram and the family of the applicant resided in Ghaziabad and the borders were sealed, getting an attested/signed Vakalatnama difficult. In spite of this situation, the online filing was rejected by the Facilitation Cnetre, Dwarka Courts and another Certificate under the signature of the Petitioner was sought for self attesting the documents.

To take stock of the situation, the Court called for a report from the Registrar General with respect to the practice being adopted by all the District Courts in Delhi with regard to e-filing and the requirement for filing Vakalatnama and recorded as follows:

- In the Central District and West District, where the accused is in jail, the Vakalatnama was to be signed by the spouse/parents/immediate family member of the accused.

- The North District and North-West District had not been declining e-filings for want of/technical defect in Vakalatnama.

- East District, North-East District and Shahadara District were asking for a scanned copy of the Vakalatnama of the concerned party or authority letter of the spouse or parents to avoid filing of bail application and urgent matters by an unauthorised person.

- The New Delhi District and the Rouse Avenue District Court were accepting bail applications even if the Vakalatnama was not annexed with an undertaking from the advocate that the Vakalatnama was either already on the record or would be filed after the lockdown was over.

- In South District, a scanned Vakalatnama signed by the party or pairokar was being taken in every case alongwith an undertaking to the effect that physical copies of the original paper-book including Vakalatnama would be filed within 15 days when the Court resumes normal functioning.

- In South-East District, bail applications, which were signed by the representative/pairokar in cases where the accused is not available, is being accepted with a certificate/affidavit of the representative with regard to authorization.

- In Dwarka District, either the Vakalatnama has to be attested or an authority/Vakalatnama must be signed by the pairokar or the family member of the accused, who is in judicial custody.

The Court then proceeded to record that in the present case, since the advocate resided in Gurugram and the family of the applicant resided in Ghaziabad and both the borders were sealed, the Facilitation Centre, Dwarka Courts ought to have handled the situation with greater sensitivity.

"The concern of the District Courts of preventing unauthorized filing of bail applications seems to be rather misplaced, for a bail application is moved for the benefit of a person who is in jail. At the worst, if the bail application is rejected, no court would bar the filing of a fresh bail application with proper justification and the concerned court would again dispose it of as per law.", the Court said.

The Court suggested that when these peculiar facts were brought to the notice of the Facilitation Centre, Dwarka Courts, a further undertaking could have been taken through the advocate that not only would the duly signed, verified and attested petition/application be filed in original, but a duly signed vakalatanama would also be filed within two weeks of the withdrawal of the lockdown.

It was further pointed out that the mandatory requirements with reference to vakalatanama had been eased even in the High Court to facilitate filing and quicker delivery of justice during this unprecedented time of pandemic and lockdown.

The Court thus directed that the Facilitation Centre, Dwarka Courts, to forthwith accept the bail application with an undertaking by the counsel to file the vakalatanama duly signed within two weeks of the withdrawal of the lockdown.

In order to avoid similar situations occurring in other Districts, the Court further ordered,

..this Court directs that in bail matters, there will be no insistence on filing of the signed/attested vakalatanama, signed and attested affidavits or applications where the applicant is in jail and/or of the family members of such an applicant, reside outside Delhi.
Delhi High Court

Similarly, the requirement of furnishing a Certificate by the petitioner/applicant/plaintiff to vouch for authenticity of the documents annexed with the plea, have also been dispensed with when the petitioner/applicant/plaintiff residess outside Delhi.

An email, as sent in the present case by the father affirming the appointment of counsel and an undertaking to sign the vakalatanama and other original documents within two weeks of the lifting of the lockdown should suffice in such cases. Aadhaar number and phone/mobile number should also be recorded in such email/authority letter. Such emails should be accepted without insistence on signatures, as it may not be possible for everyone to append their digital signatures or send the scanned copy.
the Court clarified.

The Petition was disposed of with a request to the Registrar General to circulate these directions to all District Judges for immediate compliance.

Advocate Pankaj Yadav represented the Petitioner.

Standing counsel Rahul Mehra with Advocatre Chaitanya Gosain represented State.

Read the Order:

Hansraj vs State.pdf
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