Ram Swaroop Jatav v. State of U. P. — 1993 DIGILAW 537 (ALL)

Judgment : J.P. Semwal 1. THIS is an application under section 482 Criminal Procedure Code, for quashing the order dated 13-9-1983 passed by the Munsif magistrate, Agra, and for staying further proceeding in criminal case no. 379 of 1982 State v. Ram Swaroop and others under section 466, 218 and 120 B IPC, Police Station Edmadpur, district, Agra pending in that court. 2. THE facts giving rise to this application are very short. THE applicant moved an application dated 8-9-93 before the trial court under section 2 (q)/303 CrPC and section 32 of the Advocate Act, for permitting one Sri Salig Ram Sharma, to act as his pleader in that case. This application was rejected by the learned Munsif Magistrate by his order dated 13-9-1982, which is annexure No. 2, to this application. THE present petition has been filed against the above order. I have heard Sri Tapan Ghosh, learned senior counsel for the applicant in support of the petition and Sri B. K. Chaturvedi as well as Sri Vinod Kumar Sharma, learned counsel for the complainant, and A.G.A. in opposition. 3. IT was urged by the learned counsel for the applicant that the right of the applicant to be defended by a pleader of his choice is fundamental and guranteed by the Constitution of India and that the applicant has full faith and confidence in the ability of Sri Salig Ram Sharma to defend the applicant. IT is further urged that the trial court did not consider the provisions of sections 2 (q), 303, CrPC and section 32 of the Advocate Act and that the impugned order was passed without applying mind. 4. THE applicant has filed his own affidavit in support of the petition. It is stated in para 9 of the affidavit that the Magistrate has mentioned in the impugned order that Sri S. K. Pathak, Advocate was, representing the applicant at the trial, which is absolutely incorrect. THE said Sri S. K. Pathak, is duly appointed counsel of the complainant Sri Narendra Dutta Paliwal. THE applicant has filed a true copy of the Vakalatnama, which is appended as Annexure-No. 3 to this affidavit. THE said Sri S. K. Pathak, is duly appointed counsel of the complainant Sri Narendra Dutta Paliwal. THE applicant has filed a true copy of the Vakalatnama, which is appended as Annexure-No. 3 to this affidavit. It is also stated that Sri Salig Ram is retired Dy.S. P. Formerly he was an A.P.P. in which capacity he had prosecuted hundreds of criminal cases and that Sri Salig Ram is a pleader of the applicant's choice and he asserts his right to be represented by the said Sri Sharma, who is able and willing to do so. THE complainant Narendra Dutt Paliwal has filed his counter affidavit and he has not denied the averment of the applicant that Sri S. K. Pathak was representing the complainant in criminal case no. 379/82 before the Magistrate. Learned counsel for the parties have referred to sections 2 (q), 303 CrPC and section 32 of the Advocate Act. Case law has been cited on behalf of the applicant It would be relevant to set out the aforementioned relevant provisions in order to appreciate the contention raised by the learned counsel for the applicant. 5. SECTION 2 (q) of the CrPC reads as follows :- SECTION 2 (q) "Pleader", 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 proceeding : SECTION 32 of the Advocates Act, 1961 reads as follows : 32. Power of court to permit appearances in particular case. Notwithstanding anything contained in this Chapter, any court, authority or person may permit any person, not enrolled as an advocate under this Act to appear before it or him in any particular case." SECTION 303 of the CrPC reads as follows : 303. "Right of person against whom proceedings are instituted to be defended. Any "person "accused "of an offence before a criminal court, or" against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice." From the aforesaid provisions, it is clear that any person other than an advocate under the Advocate Act, 1961 can act as pleader for the accused provided court's permission is obtained. The power of the court is discretionary. The power of the court is discretionary. A person who is not an advocate or Vakil requires permission of the court to become a pleader. The permission may be granted for a particular proceeding only and may be granted or withdrawn at the discretion of the court. The definition of pleader in the present CrPC corresponds to section 4 (1) (r) of the old CrPC with omission of words referred to different classes of lawyers e.g. pleader, Mukhtar, Advocate, Vakil, Attorney in view of the provisions of the Advocate Act, 1961. 6. LEARNED counsel for the applicant cited Sarsibala Dawan v. State, 1962 (1) CrLJ 743 :1020 and urged that Salig Ram Sharma is a "pleader' within the meaning of Section 2 (q) CrPC. In Sarasibala v. State (supra) it was held :- "Where one accused out of others, who are produced before the Magistrate, does not appear due to sudden illness, he can appoint private person or even a co-accused to appear in his stead, under section 41 (1) (r) read with section 205 (1) and then it is equally open to such Magistrate to permit such private person or such co-accused to represent the absentee accused. The court should also note on the record that he was given the requisite permission to such person to represent the accused, and should not leave the matter to mere implication or speculation. Where there is no power of attorney or a letter of authority or the like to show that a person has been appointed by an accused person to appear and plead on his behalf, the Court is not entitled to accept a plea of guilty put forward by such a person and to convict the accused under Section 243 upon such a plea." 7. IT has also been observed that it would be difficult to see any real and substantial ground for limiting the words "any other person", in section 4 (1) (r) so as to exclude a co-accused that may be duly appointed. The definition of the term "pleader" tin section 4 (1) (r) is used in wide sense. The words "any other person" used in section 4 (1) (r), are wide enough to embrace even one of the other co-accused, like any pure outsider. 8. The definition of the term "pleader" tin section 4 (1) (r) is used in wide sense. The words "any other person" used in section 4 (1) (r), are wide enough to embrace even one of the other co-accused, like any pure outsider. 8. IN D.A.S. Swami v. Kubendran (supra) the definition of pleader under section 4 (1) (r) of the old CrPC has been held to be exhaustive. It has been held in para 14 of the judgment, "His contention is that the definition of "pleader" in section 4 (1) (r) CrPC raised only the word "indicates" and is, therefore not an exhaustive definition and cannot bar a power of attorney agent like himself. He points out that there are other sections in the Criminal Procedure Code and the Indian Penal Code using the words "agents of the accused" for instance Section 172, 173 and 174 IPC and forms 12 and 13 of Sch.V to the CrPC. I am however unable to accept this contention. The definition of "pleader" in Sec. 4 (1) (r) CrPC must be understood as an exhaustive definition, that is as saying ''means and includes". To hold otherwise would mean that sub-clause (2) of the definition requiring the previous permission of the court in the case off a person who is not an advocate, a Vakil or attorney of a High Court, would become a dead letter." It has also been observed that "it is also understandable that where a person other than an advocate, a vakil or an attorney is given the privilege of pleading for an accused, pervious permission of the Court is necessary. Hence both as a matter of construction and on the probability of the matter, I have no difficulty in holding that the definition of "pleader" in Section 4 (1) (r) means that a person who is not an advocate, vakil or attorney, requires, the permission of the court to become a pleader as defined "In the concluding part of the report, it has been observed that the Court may in a given case permit even a person not qualified in law to plead for an accused and certainly the previous permission of the court is only a minimum requirement. 9. 9. THE definition of pleader in Section 2 (q) CrPC and definition of Advocate in section 2 (a) of the Advocate Act, 1961, would make it clear that there is difference in professional and non-professional representatives. Under Section 29 of the Advocates Act, only advocates are entitled to practise the profession of law. Section 32 of the Advocate Act, however, makes it clear that representation through non-professional in any particular case is not barred. According to section 32 of the Advocate Act, any court, authority or person may permit any person controlled as an Advocate under the Advocates Act, to appear before it or him in any particular case. Obviously, private person who is not an advocate nor a professional has no right to argue for a party and he cannot barge into court as of night. He must get prior permission of the court for which the motion must come from the party itself. THE power under Section 32 of the Advocates as well as under section 303 of CrPC is vested in the court for special circumstances to be exercised judicially. Ordinarily a party should not be deprived of this benefit and discretion should be exercised judicially. 10. THE right to consult and to be defended by a legal practitioner of an accused's choice recognised by Article 22 (1) of the Constitution of India. THE Advocates Act and the Criminal Procedure Code confer right on an accused person the right to be defended by a pleader of his choice. Section 303 of the CrPC corresponds to old Section 304 (1) with the addition of the words "of his choice." THE term "pleader" occurring in this section also has exhaustive meaning as under Section 2 (q) of the CrPC. Section 302 of the CrPC confers, powers on a magisterial court to authorise the conduct of the prosecution by any person. This power is also discretionary. Section 304 CrPC create statutory right in an accused without sufficient means to be defended at the expense of the state in respect of the trial before the court of Session. Section 302 of the CrPC confers, powers on a magisterial court to authorise the conduct of the prosecution by any person. This power is also discretionary. Section 304 CrPC create statutory right in an accused without sufficient means to be defended at the expense of the state in respect of the trial before the court of Session. THE definition of the pleader under section 2 (q) of the CrPC is intended to regulate the procedure in a criminal court and from that point of view it is quite reasonable for the legislature to show that the permission of the court is required in case of a person other than an advocate. Learned counsel for the applicant placed reliance on the case of Harishankar Rastogi v. Girdhari Sharma, 1978 CrLJ 778 in support of contention that a pleader, by definition,, includes any person other than one authorised by law to practise in a court if he is appointed with the permission of the court, to act in a particular proceeding. 11. IN that case, a very short question for decision before the Supreme Court was; whether a person who is not an advocate by profession can be permitted to plead on behalf of the petitioner. It has been held :- "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. Practising a profession means something very different from representing some friend or relation on one occasion or in one case or on a few occasions of in a few cases. IN the present instance, permission is sought for presentation through a non-advocate. It is absolutely clear that any one who is not an advocate, can not as of right, rise 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 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 practise in a court if he is appointed with the permission of the court, to act in a particular proceeding. 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 practise 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." 12. THE Supreme court has cautioned against permitting a person with poor antecedents or irresponsible behaviour dubious character as private representatives. THE Supreme Court has observed that 'quarrelsome, ill-informed or blackguardly or blockheadly private representatives fling argument at the Court. Likewise the party himself may surfer 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 situation, 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." (See 1978 CrLJ 778 ). It is thus quite clear from the aforesaid provisions and the aforesaid case law that it is open to a party to get himself represented by a non-advocate in a particular case. Though section 29 of the Advocate Act, puts restrictions to practice the profession of law by any one elase other than an advocate enrolled under the Advocate Act, 1961; this, however does not shut out the representation through a non-Advocate as already stated above in view of section 32 of the Advocates Act. However, in a case of non-advocate prior permission of the court is necessary. There may be cases whether due to illiteracy or poverty or other factors, a party may not be able to engage an advocate or may not have faith in an advocate for certain reasons, that however will not deny justice altogether to that person who may get his representation done through a non-advocate on whom he has faith with the permission of the court. The moment a person is accorded permission by the court, such person who is permitted to represent a party to act, in such proceedings becomes a pleader with the meaning of section 2 (q) of the CrPC. The moment a person is accorded permission by the court, such person who is permitted to represent a party to act, in such proceedings becomes a pleader with the meaning of section 2 (q) of the CrPC. Sections 302, 303 304, CrPC are indicative of the policy of the legislature for the benefit of a party, to enable him to present his case adequately through a pleader of his' choice. The difference between professional and nonprofessional is while an advocate acts as of right and can barge into the court and claim to argue for a party but a private person who is not an advocate has no such right and he must get prior permission of the court for which the motion must come from the party himself as stated above. This power is discretionary. The Supreme Court has held that 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, 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 (See 1978 CrLJ 778 ). 13. COMING to the instant case, the applicant accused had made an application to the magistrate for permitting Salig Ram Sharma to act as a pleader for him in the case pending against him in the court. It was mentioned that the applicant had full faith in Salig Ram Sharma and had cordial relation with him. Sri Salig Ram Sharma, a retired Dy.S.P. of 1962, was also an A.P.P. and had conducted many criminal cases, hence he was a qualified man and not a quack, who would have proved a fatal friend to the applicant. The order of the learned magistrate goes to show that the permission was not granted because one Sri S. K. Pathak was already representing the accused from before. The order of the learned magistrate goes to show that the permission was not granted because one Sri S. K. Pathak was already representing the accused from before. It is however, against the record as the said Sri S. K. Pathak was not the counsel for the accused, but was a counsel of the complainant Narendra Dutta Paliwal as has been discussed above on the basis of para 9 of the affidavit of the applicant and the photostat copy of Vakalatnama filed by Sri S. K. Pathak his counsel for the complainant Narendra Dutta Paliwal (Annexure No. 3 to the affidavit). The impugned order dated 13-9-93 has been passed by the learned magistrate without applying his mind and he erred in not exercising his judicial discretion properly on the motion of the applicant who wanted to get himself represented in that case by a non-professional Sri Salig Ram Sharma, 14. IN the concluding stage of the argument, it was brought to the notice of the court by the learned counsel for the complainant that Sri Salig Ram Sharma has died and this was confirmed by Tapan Ghosh, learned counsel for the applicant. IN view of this fact, no purpose would be served by granting permission to the petitioner to be represented by private person i.e. Sri Salig Ram Sharma as prayed in his application dated 8-9-83 (Annexure I), Hence the prayer of the applicant has become infructuous on the death of Sri Salig Ram Sharma, and the application fails on this ground. In the result, the application under Section 482, CrPC is liable to be dismissed and it is accordingly dismissed. Appeal dismissed.