Fabricating or forging documents or misrepresenting facts are all punishable offences under law in India, but fabrication of judicial order by a legal professional seems to be a challenge that threatens the mechanism of delivery of justice. A recent attempt to cause a miscarriage of justice by producing a fake judicial order was thwarted by the Delhi High Court. In an intellectual property dispute, a party chose to rely on an order purported to be by the Intellectual Property Appellate Board (IPAB) to defend an interim injunction against the use of the mark “TOWER”. It alleged that the said IPAB order was imminent to the suit proceedings and that the plaintiff was actively concealing the material facts about proceedings that took place before IPAB and, thus, is not entitled to an injunction. Although the order was believed to be authentic by the party relying upon it, it is rather interesting to note that ever since the abolition of IPAB post Tribunal Reforms Act, 2021, the website of IPAB was scrapped without providing any backup or access for the general public.
This controversy came to light when, in a recent order dated November 16, 2023, the Hon’ble Division Bench of the Delhi High Court in Court, on its Own Motion vs Vicky Aggarwal and Ors (2023 SCC OnLine Del 7310), directed the Bar Council of Delhi to take appropriate action against an advocate if it is found that he is guilty of manufacturing the order dated March 2, 2016 (hereinafter referred to as “the IPAB order”) purported to be by Intellectual Property Appellate Board (IPAB).
This order emanates from an order dated December 14, 2022, passed in Ab Mauri India Private Limited vs Vicky Aggarwal & Ors. (CS(Comm.) 810/2022) wherein Hon’ble Single Judge of Delhi High Court had initiated a criminal contempt proceeding against the Defendants for filing the IPAB order as part of compilation. The underlying proceedings related to a trademark infringement suit wherein permanent injunction was sought against the defendants (contemnors) from directly or indirectly securing registration or using the mark “TOWER” in any manner.
In the suit proceedings, when the Defendants vehemently argued that the IPAB order was material to the suit, the plaintiff questioned the veracity of the IPAB order and brought to the notice of the Learned Single Judge that no such order exists. The plaintiff submitted that it was neither privy to any such IPAB proceedings nor had any knowledge thereof. Therefore, the question of their participation in the proceedings, leading to the IPAB order, does not arise. It was contended that this was a serious matter as no party can be allowed to file fabricated and forged documents in Court, and the matter requires investigation.
The Hon’ble Single Judge then took suo moto cognizance and, vide order dated November 24, 2022, directed the Registrar (Vigilance) along with the Registrar (Original Side) to conduct an inquiry into the matter about the authenticity of the IPAB order and file a report in a sealed cover. The contents of the report confirmed that no records of the IPAB Order were available. The report revealed that Order No. 5124/245 of 2016, alleged to have been passed in ORA/2903/16/TM/DEL, is not a genuine/authentic order. Thus, on perusal of the report, the Hon’ble Single Judge, exercising its powers under Section 18 of the Contempt of Courts Act, 1971, initiated criminal contempt proceedings and placed the matter before the Chief Justice for reference to the appropriate Division Bench.
The contemnors tendered an unconditional apology to the Hon’ble Division Bench, stating that the contempt was neither deliberate nor intentional. The contemnors explained that they had been engaging the services of their advocate since 2008, and in 2015, they were informed by the advocate that a petition had been filed before the IPAB. They further submitted that over the course of time, against the 2015 matter, they had been making payments to the said advocate. Eventually, in April 2016, the advocate handed them the IPAB order dated March 02, 2016, purported to be passed by the IPAB.
They further apprised the Hon’ble Court that they had complained against their advocate before the Bar Council of Delhi after becoming aware that the IPAB order was fake. After hearing the submissions and the apology tendered on behalf of the contemnors, the Hon’ble Division Bench of Delhi High Court discharged them from these proceedings. It directed the Bar Council of Delhi to take appropriate action, as per the law, against the said advocate for manufacturing the document placed on record to support his case.
Another glaring observation of the Hon’ble Court in this matter was that even though, owing to their association with the advocate since the year 2008, the defendants/contemnor could not fathom or suspect the advocate to be capable of such misdeed, cross-checking of the veracity of the order would have been prudent. It points to a gap in the system because there is no digital public repository after the abolition of IPAB, and the website has become dysfunctional.
Thus, for a common man engaging the services of a legal professional with no access to the IPAB’s previous orders available on an official website, the road ahead seems difficult even though it is the rule of law that a party cannot be held responsible for errors committed by their counsels. With this order, the need for access to digitised records of judicial orders passed by various authorities, courts, and tribunals, including IPAB, even after their abolition, has become all the more necessary. This goes to the roots of the justice delivery system, as one cannot be allowed to obstruct or cause a miscarriage of justice by manufacturing judicial orders or fabricating evidence.
Author – Swati Mittal