& ANR Vs. The District & Sessions Judge, Thiruvananthapuram, Kerala
 INSC 109 (31
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.
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.
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:
when used with reference to any proceeding in any Court, means a person authorised
by or under any law for the time 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" .
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
not necessary that the pleader so appointed should be the power of attorney
holder of the party in the case.
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.
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.
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.
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.
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.
Krishna Iyer, J. had occasion to deal with a 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):
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.
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.
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)].
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.
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.
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 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.
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
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.
appeal is accordingly dismissed.