Research › Search › Judgment

Andhra High Court · body

2002 DIGILAW 1509 (AP)

SYED SHAMSUDDIN BABAR v. IKRAM ALI KALEEM

2002-12-23

T.CH.SURYA RAO

body2002
T. SURYA RAO, J. ( 1 ) SINCE common questions of law and fact are involved and as the parties are the same, these two revision cases can be disposed of together. ( 2 ) THE revision petitioner seeks to assail the impugned orders both dated 1. 4. 2002 passed by the learned III metropolitan Magistrate, Hyderabad, in crl. M. P. 719 of 2002 in C. C. No. 1309 of 2001 and in Crl. M. P. No. 717 of 2002 in c. C. No. 1308 of 2002 respectively. ( 3 ) THE first respondent herein is the complainant who filed the complaint against the revision petitioner who is a Doctor practising at Jeddah in Saudi Arabia. In view of his pre-occupation with his profession at Jeddah, he appointed his brother-Mr. Syed Sikindar Ali as his agent to appear on his behalf and to defend him in all, civil, criminal, and revenue Courts by executing a General Power of Attorney in his favour. The petitioner, therefore, filed an application under Section 205 of the Code of Criminal Procedure ( the Code for brevity) seeking to dispense with his personal attendance in the Court and to permit him to be represented by his brother and General power of Attorney Holder-the said Syed sikindar Ali. According to the petitioner, the complaints filed against him are all false, calculated to obtain wrongful gain, and to harass the petitioner. He further claims that although he did not receive any summons from the Court in these criminal cases, having come to know that the Court issued NBWs against him, he filed these petitions, as aforesaid. ( 4 ) THE first respondent-complainant resisted those petitions by filing counters mentioning inter alia that there has been no provision in the Code of Criminal Procedure to appoint a Power of Attorney to represent the accused; and that the alleged Power of Attorney is not a pleader as defined under Section 2 (q) of the Code and since it has not been mentioned in the petitions that the said Power of Attorney is acquainted with the Court procedure and law and is able to assist the Court and defend the accused; and that he (Power of Attorney Holder) does not qualify himself to be appointed under Section 205 of the code. It is further pleaded that there cannot be separately an Advocate to defend the accused and a person to represent him before the Court. ( 5 ) AFTER having heard on either side, under the impugned orders, the learned iii Metropolitan Magistrate dismissed those petitions. As aforesaid, the revision petitioner is assailing those orders in these revision cases. ( 6 ) ADMITTEDLY, the revision petitioner has executed a General Power of Attorney in favour of his brother-Mr. Syedsikindar ali which has been annexed with the petitions. The said Syed Sikindar AH has been authorised inter alia in the General power of Attorney to appear or defend the revision petitioner in C. C. Nos. 1308/2001, 1309/2001 and 2234/2001 on the file of the III Metropolitan Magistrate, Hyderabad, filed by the respondent herein and to file necessary cases, appeals, revisions, reviews, objections, verified petitions, to give statements on oath, to answer questions under Section 313 and other provisions of the Code and to do all necessary things in the above cases and in other matters. Clause (a) of the conditions incorporated in the said General Power of Attorney authorised the brother of the revision petitioner to do every act on behalf of the revision petitioner in the said criminal cases. The revision petitioner has also undertaken inter alia in his petition to appear before the court as and when his personal attendance is necessary. In a way, it is obvious that the petitioner seeks his personal attendance to be dispensed with before the Court and permit him to appear through his brother who incidentally is the General Power of attorney Holder of the revision petitioner. The revision petitioner obviously, therefore, wants to appear through a proxy in criminal cases. It may be further mentioned that he engaged an Advocate to defend himself in these criminal cases. ( 7 ) HAVING regard to the above factual matrix, can the revision petitioner be permitted to represent himself through a proxy in criminal cases having already engaged an Advocate to defend himself who continues to appear for the revision petitioner before the Court, is the moot question. ( 8 ) SECTION 205 of the Code is the provision germane for consideration in the context and it reads as under:"205. ( 8 ) SECTION 205 of the Code is the provision germane for consideration in the context and it reads as under:"205. Magistrate may dispense with personal attendance of accused : (1) Whenever a magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. (2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided. " ( 9 ) A perusal of the above section shows that the Magistrate, whenever he issues a summons satisfies himself about the reason to dispense with the personal attendance of the accused, may permit the petitioner to appear by his pleader. Section 2 (q) of the Code defines the word pleader and it reads as under:"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 practice in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding. " ( 10 ) IT is obvious, therefore, that the expression pleader includes in its ambit apart from an advocate a person other than the one authorised by law to practice in a court provided he is appointed with the permission of the Court to act in such proceeding. ( 11 ) IT is also expedient to consider Sections 273, 303, 313 and 353 of the Code. Section 273 mandates that all evidence in the case shall be taken in the presence of the accused or when his personal attendance is dispensed within the presence of his pleader. Section 303 mandates that the accused as of right can defend himself by a pleader by his choice. Under Section 313, the Court may at any stage of the case examine the accused and put such questions to him as it considers necessary without previously warning him and it shall examine the accused at the conclusion of the trial on the side of the prosecution and before the accused is called on for his defence examine him by putting questions generally on the case. However, under the proviso appended to clause (b) of sub-section (1) thereof, the Court can, where it is a summons case, dispense with the examination under clause (b) when it dispensed with the personal attendance of the accused. Under sub-section (6) of Section 353, if the accused is not in custody, he shall be required by the Court to attend to hear the Judgment to be pronounced except where his personal attendance is dispensed with or sentence to be inflicted is only one of fine or in the event of case being ended in acquittal. The code, therefore, envisages several provisions where the personal attendance of the accused can be dispensed with. All this is meant to see that the accused is not subjected to harassment or inconvenience during the process of the trial in a criminal case. ( 12 ) INASMUCH as the definition of the word pleader as given in Section 2 (q) of the Code includes any person other than a pleader and as the same expression has been used in Section 205, the learned counsel appearing for the revision petitioner contends that it is obvious that the brother of the revision petitioner can be permitted to appear on behalf of the revision petitioner by dispensing with his personal attendance. The learned Counsel, in this connection, seeks to rely upon the Judgments of the calcutta High Court in Ajit KR. Chakraborty v. Serampore Municipality, 1989 Crl. LJ 523; of the Apex Court in Harishankar v. Girdhari Sharma, AIR 1978 SC 1019 ; of the Patna High Court in Sarsibala Dawan v. State, AIR 1962 Patna 244; of the assam High Court in Kamal Debt v. Pannalal, AIR 1952 Ass 151; of the mysore High Court in Bananji v. State of mysore, AIR 1954 Mysore 181; and of the apex Court in T. C. Mathai v. District and sessions Judge, Thiruvananthapuram, 1999 scc (Crl.) 455. ( 13 ) THE first Judgment in the series referred to herein above deals with the dispensing with the presence of the accused on the first date of hearing. It has been held that even at the stage of issuing summons, the Court if sees reason may dispense with the personal attendance of the accused and permit him to appear by his pleader even in the absence of any prayer by the accused. It has been held that even at the stage of issuing summons, the Court if sees reason may dispense with the personal attendance of the accused and permit him to appear by his pleader even in the absence of any prayer by the accused. In the fourth case referred to supra, the Assam High Court has also taken the same view. ( 14 ) THE Patna High Court in the third case referred to supra has, however, taken a view that the accused can appoint a private person or a co-accused to appear on his behalf and it is open to the Magistrate to permit such private person or such co-accused to represent the absentee accused. The Court further held that in the absence of any Power of Attorney or a letter of authority to show that the person has been appointed by the accused to appear and plead on his behalf, the Court is not entitled to accept a plea of guilty and to convict the accused. In other words, the Court can permit the accused to appear through a private person and plead guilty. ( 15 ) THE Mysore High Court in the fifth case referred to supra held that even if a warrant had been issued in the first instance, still exemption could be granted. ( 16 ) EXCEPT the Judgment of the Patna High Court in Sarsibala s case referred to (supra), the other Judgments discussed so far will not render any assistance in the instant case having regard to the point involved. ( 17 ) COMING to the two Judgments of the Apex Court referred to (supra), in harishankar s case in para 3 at page 1021 the Apex Court held thus:"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 filing 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 maybe conceived of where grant of permission for a private person to represent another may be obstructive, even destructive of justice. 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 maybe conceived of where grant of permission for a private person to represent another may be obstructive, even destructive of justice. Indeed, the Bar 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 bj a high ethic. The success of the judicial process often depends on the services of the legal profession. " ( 18 ) ALTHOUGH the Apex Court permitted the private person to represent the accused it was conditional that such permissions can be withdrawn if it was proved unworthy. Thus, the Apex Court struck a note of caution. In the latter case, the Apex Court considered various other provisions of the Code including the definition under section 2 (q) along with Section 32 of the advocates Act, 1961. While distinguishing the English Law and the Indian Law on the point in para 14 the Apex Court was ofthe view that while under 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. The said common law principle does not apply in india 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. Therefore, the apex Court was of the view in para 15 that section 2 of the POWERS OF ATTORNEY ACT, 1882 cannot override the specific provision of a statute which requires the appearance of an accused in a Court in-person and, therefore, 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 and it is a different thing that a party can be permitted to appear through a Counsel. It is appropriate here to excerpt the said observations thus:"14. It is appropriate here to excerpt the said observations thus:"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". 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. 15. Section 2 of the POWERS OF ATTORNEY ACT, 1882 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 ofthe 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. " ( 19 ) APART from the legal position, the fallacy in the argument can be seen by viewing it in a different angle. Any accused, particularly affluent, may prefer to seek exemption of his personal attendance before a Court of law and permit him to appear through a proxy. Such situation shall not come. It is no doubt true that the Code authorises dispensing with the personal attendance of the accused under certain circumstances. But certainly the Code has not envisaged the appearance of an accused