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CASE NO.: Appeal (crl.)  1222-23 of 2002

PETITIONER: Jimmy Jahangir Madan                                             

RESPONDENT: Bolly Cariyappa Hindley (Dead) by LRs.                           

DATE OF JUDGMENT: 04/11/2004

BENCH: B.N.AGRAWAL & H.K.SEMA  

JUDGMENT: J U D G M E N T  

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. \026 (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

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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) \026 ’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

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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\005. 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

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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  \026 an accused and in the case of Section 302 of the Code \026 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.