Jimmy Jahangir Madan Vs.
Bolly Cariyappa Hindley [2004] Insc 677 (4 November 2004)
B.N.Agrawal & H.K.Sema
B.N.Agrawal, J.
These appeals by special leave have been filed against judgment rendered by
Karnataka High Court in revision applications upholding order passed by the
Additional Chief Metropolitan Magistrate, Bangalore, in two complaint cases
whereby petitions filed under Section 302 of the Code of Criminal Procedure,
1973 (hereinafter referred to as `the Code') for allowing power of attorney
holders of heirs of the original complainant to continue the prosecution were
allowed.
The short facts are that one Mrs. Bolly Cariyappa Hindley filed two
complaints for prosecution of the appellant under Section 138 of the Negotiable
Instruments Act (hereinafter referred to as `the Act') in which cognizance was
taken and the accused was summoned. During trial, the complainant died leaving
behind her son Peter Baldwin Jr. and daughter Mrs. Nina Baldin Eddy who were
staying in United States of America, as such they executed a general power of
attorney in favour of Mr. John Curtis and Mrs. Annie Cariappa respectively. The
two general power of attorney holders of the aforesaid heirs filed applications
under Section 302 of the Code in the aforesaid cases before the trial court for
permitting them to continue the prosecution therein. which prayer was contested
by the accused, but the learned magistrate allowed the applications and
permission was granted to continue the prosecution.
Challenging the aforesaid order, two revision applications were filed before
the High Court of Karnataka by the accused which having been dismissed, the
same necessitated filing of these appeals by special leave.
Shri Dhruv Mehta, learned advocate appearing on behalf of the appellant,
submitted that the power of attorney holders had no right to file an
application under Section 302 of the Code to continue the prosecution which
could have been filed by heirs of the complainant, as such, the petitions under
Section 302 of the Code were not maintainable and liable to be dismissed on
this count alone.
Shri K.R.Chaudhary, learned Senior Advocate appearing on behalf of the
respondents, on the other hand, submitted that the petitions under Section 302
of the Code by the power of attorney holders were maintainable and the trial
court was justified in allowing the same.
The question that arises for consideration is as to whether application
under Section 302 of the Code to continue the prosecution could be filed by
power of attorney holders of heirs of the complainant? In order to appreciate
the point, it would be useful to refer to Section 302 of the Code which runs
thus:- "Permission to conduct prosecution. (1) Any Magistrate inquiring
into or trying a case may permit the prosecution to be conducted by any person
other than a police officer below the rank of Inspector; but no person, other
than the Advocate-General or Government Advocate or a Public Prosecutor or
Assistant Public Prosecutor, shall be entitled to do so without such
permission;
Provided that no police officer shall be permitted to conduct the
prosecution if he has taken part in the investigation into the offence with
respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a
pleader. " The question as to whether heirs of the complainant can be
allowed to file an application under Section 302 of the Code to continue the
prosecution is no longer res integra as the same has been concluded by a
decision of this Court in the case of Ashwin Nanubhai Vyas v. State of Maharashtra
& Anr., 1967(1) SCR 807, in which case the Court was dealing with a case
under Section 495 of the Code of Criminal Procedure, 1898, which is
corresponding to Section 302 of the Code. In that case, it was laid down that
upon the death of the complainant, under the provisions of Section 495 of the
said Code, mother of the complainant could be allowed to continue the
prosecution. It was further laid down that she could make the application
either herself or through a pleader. Undisputedly, in the present case, the
heirs themselves have not filed the applications to continue the prosecution,
rather the same have been filed by their power of attorney holders. Thus, the
question that arises would be as to whether power of attorney holder can be
treated to be pleader of heirs of the complainant? `Pleader' is defined in
Section 2(q) of the Code which reads thus:- "2(q) 'Pleader', when used
with reference to any proceeding in any Court, means a person authorized by or
under any law for the time being in force, to practise in such Court, and
includes any other appointed with the permission of the Court to act in such
proceeding;" The definition envelopes two kinds of pleaders within its
ambit. The first refers to legal practitioners who are authorized 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
represent 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 a party in the case. What
seems to be a condition precedent is that his appointment should have been
preceded by grant of permission of the court. It is for the court to consider
whether such permission is necessary in the given case. Legally qualified
persons who are authorized 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.
Section 33 of the Advocates
Act lays down that no person shall be entitled to practise in any court
unless he is enrolled as an Advocate under the said Act. But if the person
proposed to be appointed by a party is not such a qualified person, prior
permission of the court must be secured before a non-advocate is appointed by a
party to represent him in court.
The question as to under what circumstances a power of attorney holder can
be brought within the ambit of the expression "pleader", as defined
in Section 2(q) of the Code, was subject matter of consideration before this
Court in the case of T.C.Mathai and Anr. v. District & Sessions Judge, Thiruvananthapuram,
Kerala, (1999) 3 SCC 614. In that case, power of attorney holder filed a
petition before the session court for permitting him to represent the accused
persons but the prayer was declined and the same was confirmed by a Single
Judge of the Kerala High Court as well as by Division Bench, on appeal being
preferred. When the matter was brought to this Court, order of session court
declining to grant permission was not interfered with, and this Court observed
thus at pages 619 and 620:
"14. 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 Ch D, (1886) 35 Ch D 162 at p.
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 v. CIT AIR 1956 SC 604).
15. 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 the 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.
16. 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 right of audience in court. Beasley, C.J., who delivered
the judgment on behalf of the Full Bench stated the legal position thus:
(AIR Headnote) "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 the 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."
17. 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 a
permission and hence no occasion has arisen so far to consider that
aspect." In the case of T.C.Mathai (supra), this Court was considering as
to whether under Section 205 of the Code, personal attendance of accused could
be dispensed with and permission could be granted to the power of attorney
holder to represent the accused and it was laid down that after dispensing with
personal attendance of an accused, he could be allowed to be represented only
by a "pleader" within the meaning of Section 2(q) of the Code and
"pleader" may be of two kinds. The first refers to legal
practitioners who are authorised to practise law; and the second "any
other person" appointed by a party with the permission of the court to
represent him in the proceeding, permission for which must be sought by the
party concerned meaning thereby that if an accused wants himself to be
represented by a power of attorney holder in court, he should himself apply to
the court seeking such a permission and no such permission can be granted where
the same has been sought by the power of attorney holder.
The language of Sections 205 and 302 of the Code is similar. Under Section
302 of the Code, a party can make an application himself to continue the
prosecution or the same can be made by a pleader. As provided under Section
2(q) of the Code, the prayer to continue the prosecution can be made either by
a legally qualified person, who is authorised to practise in the court under
the Advocates
Act; or by any other person which would obviously include a power of
attorney holder in which eventuality such permission can be granted by the
court where the prosecution is pending only if it is sought by the person who
is entitled to continue the prosecution and not by the power of attorney
holder. Under Section 205 of the Code, an accused is required to appear in
person but his personal appearance can be dispensed with and he can be allowed
to be represented by a pleader. Likewise, under Section 302 of the Code, a
person, who is entitled to continue the prosecution, is required to make an
application himself but under both the provisions aforesaid, instead of taking
steps personally, a party can be represented through a pleader. Power of
attorney holder can represent the concerned party under both the provisions of
the Code, in case permission for such representation is sought from the court
by the concerned person and granted by it. But where no such permission is
sought by the concerned person, meaning thereby, in the case of Section 205 of
the Code an accused and in the case of Section 302 of the Code a party who
has right to continue the prosecution, power of attorney holder cannot be
allowed to represent the concerned person in the proceeding.
In the present case, neither heirs of the complainant filed petition under
Section 302 of the Code to continue the prosecution nor any permission was sought
by them from the competent court that they should be allowed to continue the
prosecution through their power of attorney holders, rather the prayer was made
by the power of attorney holders, which is not permissible under law. This
being the position, we are of the view that the trial court was not justified
in allowing the petitions under Section 302 of the Code and the High Court has
committed an error in confirming the said order which is liable to be set aside
and petitions under Section 302 of the Code are fit to be dismissed giving
liberty to the heirs either to make application themselves before the court
concerned to continue the prosecution or apply to the court to grant permission
to them to authorize the power of attorney holders to continue the prosecution
on their behalf.
In the result, the appeals are allowed, impugned orders are set aside and
the petitions under Section 302 of the Code filed before the trial court are
rejected giving liberty to the heirs of the complainant to file fresh applications
under Section 302 of the Code as stated above.
Back