Full Judgment Text
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PETITIONER:
T.C. MATHAI & ANR.
Vs.
RESPONDENT:
THE DISTRICT & SESSIONS JUDGE, THIRUVANANTHAPURAM, KERALA.
DATE OF JUDGMENT: 31/03/1999
BENCH:
K.T.Thomas, M.B.Shah
JUDGMENT:
THOMAS,J.
Leave granted.
Appellant claims to be the power of attorney
holder of a couple (husband and wife) now living in Kuwait. He
sought permission of the Sessions Court, Trivandrum to appear and
plead on behalf of the said couple who are arrayed as respondents
in a criminal revision petition filed before the said Sessions
Court (they will be referred to as the respondent-couple). But
the Sessions Judge declined to grant permission as the request
for such permission did not emanate from the respondent-couple
themselves. Thereupon appellant moved the High Court of Kerala
under Article 226 of the Constitution for issuance of a direction
to the Sessions Judge concerned to grant the permission sought
for. A Single Judge of the High Court dismissed the original
petition against which appellant filed a writ appeal which too
was dismissed by a Division Bench of the High Court.
Undeterred by the successive setback in securing a right
of audience on behalf of the aforesaid couple the appellant
travelled the long distance from the southern end of the country
right up to the National Capital to personally argue before the
apex Court that he is entitled to plead for the respondent-couple
in the Sessions Court. We heard the appellant-in-person though
we are still now unable to appreciate why he, instead of
incurring so much expenses and strain, did not advise the
respondentcouple to engage a counsel for pleading their cause
before the Sessions Court.
Appellant, during the course of his arguments, referred
to a commentary on Criminal Law to support his contention that a
power of attorney holder has all powers to act on behalf of his
principal. We would assume that the respondent-couple would have
executed an instrument of power of attorney empowering appellant
to act on their behalf. Can he become a pleader for the
respondent-couple on the strength of it?
Section 303 of the Code of Criminal Procedure (for short
the Code) entitles a person to the right of being defended by a
pleader of his choice when proceedings are initiated against
him under the Code. Pleader is defined in Section 2(q) as
this:
"Pleader, when used with reference to any proceeding in any
Court, means a person authorised by or under any law for the time
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being in force, to practise in such Court, and includes any other
person appointed with the permission of the Court to act in such
proceedings"
.
The definition envelopes two kinds of pleaders within its
ambit. The first refers to legal practitioners who are
authorised to practise law and the second refers to any other
person. If it is the latter its essential requisite is that
such person should have been appointed with the permission of the
court to act in such proceedings. This is in tune with Section
32 of the Advocates Act 1961 which empowers a Court to permit any
person, who is not enrolled as an advocate to appear before it in
any particular case. But if he is to plead for another person in
a criminal court, such permission should be sought for by that
person.
It is not necessary that the pleader so appointed
should be the power of attorney holder of the party in the case.
What seems to be condition precedent is that his appointment
should have preceded by grant of permission of the court. It is
for the court to consider whether such permission is necessary in
the given case and whether the person proposed to be appointed is
capable of helping the court by pleading for the party, for
arriving at proper findings on the issues involved in the case.
The work in a court of law is a serious and responsible
function. The primary duty of criminal court is to administer
criminal justice. Any lax or wayward approach, if adopted
towards the issues involved in the case, can cause serious
consequences for the parties concerned. It is not just somebody
representing the party in the criminal court who becomes the
pleader of the party. In the adversary system which is now being
followed in India, both in civil and criminal litigation, it is
very necessary that the court gets proper assistance from both
sides.
Legally qualified persons who are authorised to practise
in the courts by the authority prescribed under the statute
concerned can appear for parties in the proceedings pending
against them. No party is required to obtain prior permission of
the court to appoint such persons to represent him in court.
Section 30 of the Advocates Act confers a right on every advocate
whose name is entered in the roll of advocates maintained by a
State Bar Council to practise in all the Courts in India
including the Supreme Court. Section 33 says that no person
shall be entitled to practise in any Court unless he is enrolled
as an advocate under that Act. Every advocate so enrolled
becomes a member of the Bar. Bar is one of the main wings of the
system of justice. An advocate is the officer of the court and
is hence accountable to the court. Efficacious discharge of
judicial process very often depends upon the valuable services
rendered by the legal profession.
But if the person proposed to be appointed by the party
is not such a qualified person the court has first to satisfy
itself whether the expected assistance would be rendered by that
person. The reason for the Parliament for fixing such a filter
in the definition clause [Sec.2(q) of the Code] that prior
permission must be secured before a non-advocate is appointed by
the party to plead his cause in the court, is to enable the court
to verify the level of equipment of such person for pleading on
behalf of the party concerned.
V.R. Krishna Iyer, J. had occasion to deal with a
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similar matter while considering a plea like this in a chamber
proceeding in the Supreme Court. In that case, a party sought
permission to be represented by another person in a criminal
case. Learned Judge then struck a note of caution in the
following terms in Harishankar Rastogi vs. Girdhari Sharma &
anr. (AIR 1978 SC 1019):
"If the man who seeks to represent has poor antecedents
or irresponsible behaviour 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 blockheadly 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 disqualifications may be conceived of
where grant of permission for a private person to represent
another may be obstructive, even destructive of justice."
Appellant submitted that he is the duly appointed
attorney of the respondent-couple by virtue of an instrument of
power of attorney executed by them and on its strength he
contended that his right to represent the respondent-couple in
the court would be governed by the said authority in the
instrument.
In Strouds Judicial Dictionary, power of attorney is
described as an authority whereby one is set in the turne,
stead, or place of another to act for him. In Blacks Law
Dictionary it is described as the instrument by which a person is
authorised to act as an agent of the person granting it. Section
2 of the Power of Attorney Act, 1882 empowers the donee of a
power of attorney to do anything in and with his own name and
signature by the authority of the donor of the power. Once such
authority is granted the said Act recognises that everything done
by the donee shall be as effectual in law as if it had been done
by the d of the power in the name and with the signature of the
donor thereof.
Under the English Law, every person who is sui juris has
a right to appoint an agent for any purpose whatsoever, and he
can do so when he is exercising statutory right no less than when
he is exercising any other right, [vide Jackson & Co. v.
Napper (1986) 35 Ch.D.162 at page 172]. But this Court has
pointed out that the aforesaid common law principle does not
apply where the act to be performed is personal in character, or
when it is annexed to a public office or to an office involving
any fiduciary obligation, [vide Ravulu Subba Rao and ors. v.
Commissioner of Income-tax, Madras (AIR 1956 SC 604)].
Section 2 of the Power of Attorney Act cannot override
the specific provision of a statute which requires that a
particular act should be done by a party in person. When the
Code requires the appearance of an accused in a court it is no
compliance with it if a power of attorney holder appears for him.
It is a different thing that a party can be permitted to appear
through counsel. Chapter XVI of the Code empowers the Magistrate
to issue summons or warrant for the appearance of the accused.
Section 205 of the Code empowers the Magistrate to dispense with
the personal attendance of accused, and permit him to appear by
his pleader if he sees reasons to do so. Section 273 of the
Code speaks of the powers of the court to record evidence in the
presence of the pleader of the accused, in cases when personal
attendance of the accused is dispensed with. But in no case can
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the appearance of the accused be made through a power of attorney
holder. So the contention of the appellant based on the
instrument of power of attorney is of no avail in this case.
In this context reference can be made to a decision
rendered by a Full Bench of the Madras High Court in M.
Krishnammal v. T. Balasubramania Pillai (AIR 1937 Madras 937),
when a person, who was the power of attorney holder of another,
claimed right of audience in the High Court on behalf of his
principal. A Single Judge referred three questions to be
considered by the Full Bench, of which the one which is relevant
here was whether an agent with the power of attorney to appear
and conduct judicial proceedings has the ri court. Beasley,
C.J., who delivered the judgme nt on behalf of the Full Bench
stated the legal position thus:
"An agent with a power of attorney to appear and conduct
judicial proceedings, but who has not been so authorised by the
High Court, has no right of audience on behalf of principal,
either in the appellate or original side of the High Court There
is no warrant whatever for putting a power of attorney given to a
recognized agent to conduct proceedings in court in the same
category as a vakalat given to a legal practitioner, though
latter may be described as a power of attorney which is confined
only to pleaders, i.e. those who have a right to plead in
courts."
The aforesaid observations, though stated sixty years ago, would
represent the correct legal position even now. Be that as it
may, an agent cannot become a pleader for the party in criminal
proceedings, unless the party secures permission from the court
to appoint him to act in such proceedings. The respondent-couple
have not even moved for such permission and hence no occasion has
arisen so far to consider that aspect.
The appeal is accordingly dismissed.