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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.