Full Judgment Text
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PETITIONER:
HARISHANKAR RASTOGI
Vs.
RESPONDENT:
GIRDHARI SHARMA AND ANR.
DATE OF JUDGMENT13/03/1978
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
CITATION:
1978 AIR 1019 1978 SCR (3) 493
1978 SCC (2) 165
ACT:
Practice and Procedure-Proviso to O. IV, Rule-1 read with
Order-1 R. 2 (1) (a) and (b) of Supreme Court Rules,
1966. Advocates, Act 1961 Ss. 2(a), 29 and 30(1) and
Criminal Procedure Code 1973 Ss. 2(q), 302, 303 ,and 304
Civil Procedure Code, (Act 5) 1908 S. 2(1.5) read with Order
IV Right to be represented by another person who is not an
Advocate, whether and, if so when permissible-Meaning of
"Provided the Court may, if for any special reason it thinks
desirable to give permission for other person to appear
before it in particular case". explained.
HEADNOTE:
The petitioner appeared in person and sought permission to
be represented by another person who is not an Advocate,
falling within the meaning of S.2(a) of the Advocate, Act
1961 in the place of an Advocate Amicus Curiae appointed by
this Court.
Allowing the petition, the Court
HELD
1. A private person who is not an Advocate, has no right to
barge into Court and claim to argue for a party. He must
get the prior permission of the Court for which the motion
must come from the party himself. It is open to the Court
to grant or withhold permission in its discretion. In fact,
the Court may even after grant of permission withdraw it
half-way through if the representative proves himself
reprehensible. The antecedents, the relationship, and
reasons for requisitioning the services of the private
person and a variety of other circumstances must be gathered
before grant or refusal of permission. [49599 G-H, 496 A]
2. The Advocates are entitled as of right to practice in
this Court under S. 30(1) of the Advocates Act, 1961 subject
to the reasonable restriction provided under s. 29 of that
Act viz. that the only class of persons entitled to practice
the profession of law shall be advocates. Even so, it is
open to a party, who is unable for some reason or the other
to present his case adequately, to seek the help of another
person in his behalf. To negative such a plea may be
denying justice altogether in certain cases, especially in a
land of illiteracy and indigence and judicial processes of
sophisticated nature. Ss.302, 303 and 304 of the Cr. P.C.
are indicative of the policy of the Legislature to provide
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for such contingencies. This Court should not totally shut
out representation by person other than the party himself in
situations where an advocate is not appearing for the party.
[494 D-G]
3. A comprehensive programme of free legal services, is in a
sense,a serious obligation of the State if the rule of law
were to receive vitality in its observance. Until then,
parties should appear through advocates, and where they are
not represented by one such, through some chosen friend.
Such other person cannot practice the profession of
habitually representing parties in Court. If a non-advocate
specialises in practicing in Court, professionally he will
be violating the text of the interdict in the Advocates Act,
which the Court cannot allow him to do so. Nevertheless it
is open to a person who is a party to a proceeding to get
himself represented by a non-advocate in a particular in-
stance or case. Practicing a profession means something
very different from representing some friend or relation on
one occasion or in one case or on a few occasions ,or in a
few cases. [494 G-H-495 A]
14-L277SCI/78
494
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Misc. Petition
No.506 of 1978.
(Application for cancellation of the appointment of Amicus
Curiae and for permission to be represented by another
person)
Petitioner-in-Person.
R. L. Alain and M. V. Goswami for the Supreme Court Bar
Association (Amicus Curiae).
The Judgment of the Court was delivered by
KRISHNA IYER, J. The petitioner appears in person and seeks
permission to be represented by another person, who is not
an advocate, falling within the definition in section 2 (a)
of the Advocates Act, 1961. On an earlier occasion Sri R.
K. Jain, Advocate of this Court was requested to act as
amicus curiae since the petitioner represented that he could
not engage counsel. However, Sri Jain, for reasons which we
need not go into here, has been discharged from the brief at
his request. The short question that I have, to decide here
is whether a person who is not an advocate by profession,
can be permitted to plead on behalf of the petitioner ?
Advocates are entitled as of right to practice in this Court
(Section 30(i) of the Advocates Act, 1961). But, this
privilege cannot be claimed as of right by any one else.
While it is true that Art. 19 of the Constitution guarantees
the freedom to practice any profession, it is. open to the
State to make a law imposing, in the interest of the general
public, reasonable restrictions on the exercise of the
right. The Advocates Act, by Section 29, provides for such
a reasonable restriction,. namely, that the only class of
persons entitled to practice the profession of law shall be
advocates. Even so, is it not open to a party who is unable
for some reason or other to present his case adequately to
seek the help of another person in this behalf ? To negative
such a plea may be denying justice altogether in certain
cases, especially in a land of illiteracy and indigence and
judicial processes of a sophisticated nature. That is
precisely why legislative policy has taken care to, provide
for such contingencies. Sections 302, 303 and 304 of the
Criminal Procedure Code are indicative of the policy of the
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legislature. I do not think that in this Court we should
totally shut out representation by any person other than the
party himself in situations where an, advocate is not
appearing for the party. A comprehensive programme of free,
legal services is, in a sense, a serious obligation of the
State if the yule of law were to receive vitality in its
observance. Until then parties may appear through
advocates, and where they are not represented by one such,
through some chosen friend. Such other person cannot
practice the profession of habitually representing parties
in court. If a non-advocate specialises in practicing in
court, professionally be will be violating the text of the
interdict in the Advocates Act. I cannot allow him to do
so. Nevertheless, it is open to a person, who is party to a
Proceeding, to get himself represented by a non-advocate in
a particular instance or case. Practicing a profession
means something very different from representing some friend
or relation on one occasion or in one
495
case or on a few occasions or in a few cases. In the
present instance, permission is sought for representation
through a non-advocate. it is absolutely clear that any one
who is not an advocate, cannot, as of right, force himself
into this Court and claim to plead for another. Permission
may, however, be granted by this Court taking the justice of
the situation and several other factors into consideration
for such nonprofessional representation. This approach
accords with the policy of the Criminal Procedure Code (I am
concerned with a criminal proceeding here) as spelt out in
Section 2(q). A pleader, by definition. includes any person
other than one authorised by law to practice in a court if
he is appointed with the permission of the court, to act in
a particular proceeding. This Court’s power may well be
exercised in regulating audience before it in tune with the
spirit of section 2(q) of the Code.
The petitioner has put in a written representation citing a
number of decisions to justify his stand that private
persons may be permitted by the court to appear, act and
plead. He has cited a number of decisions in support of his
position. Apparently, some legal hand has lent him help. I
thought it fit to give notice to the Supreme Court Bar
Association and Sri Nain has represented the Bar Association
before me and assisted me with his brief but telling
submissions. His experience as a senior member of the Bar
and as a one-time judge of a High Court is an additional
factor of assistance. Sri Nain persuasively ,stated that
while a private person who is not an advocate by profession
cannot, as of right, walk in the claim to argue before this
Court, he may,in a particular case, be specially permitted
by the court in exercise, of its wise discretion. The
wisdom of the discretion, in his submission, must be guided
by a plurality of considerations. If the man who seeks to
represent has poor antecedents or irresponsible behavior or
dubious character, the court may receive counter-productive
service from him. Justice may fail if a knave were to
represent a party. Judges may suffer if quarrelsome, ill-
informed or blackguardly or block headly private
representatives fling, arguments at the Court. Likewise,
the party himself may suffer if his private representative
deceives him or destroys his case by mendacious or
meaningless submissions and with no responsibility or
respect for the Court. Other situations, settings and dis-
qualifications may be conceived of where grant of permission
for a private person to represent another may be
obstructive, even destructive of justice. Indeed, the Bar
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is an extension of the system of justice; an advocate is an
officer of Court. He is master of an expertise but more,
than that accountable to the Court and governed by a high
ethic. The success of the judicial process often depends on
the services of the legal profession.
Having regard to this conspectus of-considerations I hold
that a private person, who is not an advocate, has no right
to barge into Court and claim to argue for d party. He must
get the prior permission of the Court, for which the motion
must come from the party himself. It is open to the Court
to grant or withhold permission in its discretion. In fact,
the Court may, even after grant of permission, withdraw it
half-way through if the representative proves himself
reprehensible. The
496
antecedents, the relationship, the reasons for
requisitioning the services of the private person and a
variety of other circumstances must be gathered before grant
or refusal of permission. In the present case I have
noticed the petitioner and his friend who is to represent
him, come together with mutual confidence. The party
somehow has not shown sufficient confidence in advocates he
has come by. This bodes ill for him. I should have
suspected the association of the private person as having
sinister implications of exploitation of a guileless party
but suspicion by itself should not be the basis of a
conclusion. Therefore,. I think it right to give the
party, who appears to be unable to represent his own case,
an opportunity to present his grievance through, his friend.
That friend, judging by the note prepared and put in, seems
to be familiar with law, although quacks can prove fatal
friends. I grant the petitioner permission to be
represented by a private person as prayed for, with the
condition that if this latter proves unworthy, the
permission will be withdrawn.
S.R
Petition allowed.
497