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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