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2002 DIGILAW 258 (KAR)

M. C. S. BARNA v. C. B. RAMAMURTHY

2002-04-05

H.N.NARAYAN

body2002
H. N. NARAYAN, J. ( 1 ) PETITIONER is a practising Advocate at Bangalore. He has challenged the order of VI Additional C. M. M. , Bangalore, (passed in C. C. No. 14833/1996), who has rejected an application filed by the petitioner under Section 319 of Cr. P. C. The petitioner who preferred to argue his own case by wearing Robes has again raised an old controversy settled by the Bench of this Court in T. Venkanna v. The Hon'ble High Court of Mysore by its Registrar, AIR 1973 Mysore 127. I shall shortly take up that question, after considering the legality and correctness of the impugned order. ( 2 ) THE petitioner has narrated in his petition the circumstances under which he was compelled to make the application under Section 319 of Cr. P. C. It is his case that he filed two private complaints before the Additional C. J. M. , Bangalore, in the year 1992, in P. C. R. No. 27/92 and P. C. R. No. 30/92 against one C. B. Ramamurthy, alleging the offences punishable under Section 506 (b) of the I. P. C. Those two complaints were referred to the Deputy Superintendent of Police for investigation and report. He thereafter submitted another complaint before the Ulsoor Gate Police Station and it was registered in Crime No. 104/1994 under Section 506 (b) of the I. P. C. But, a 'b' report was submitted by the Police. Thereafter, he filed a protest petition before the Court. The learned Magistrate who heard him, took cognizance of the offence under Section 506 (b) of the I. P. C. , treating it as the complaint. The petitioner's statement was recorded. At that stage, the petitioner filed two applications, one praying for the Government to meet the prosecution expenses under Section 312 of Cr. P. C. , and another application under Section 319 of Cr. P. C. , to implead one Mallikarjuna as accused No. 2 in his case. The learned Magistrate after hearing the complainant-the petitioner himself, noticed that there is no whisper against the said Mallikarjuna in his sworn statement made before the Court. Moreover, he has already taken action against the said person for the offence alleged to have been committed by him. The learned Magistrate after hearing the complainant-the petitioner himself, noticed that there is no whisper against the said Mallikarjuna in his sworn statement made before the Court. Moreover, he has already taken action against the said person for the offence alleged to have been committed by him. But, in the said case there is nothing to show the complicity of the said Mallikarjuna in the alleged offence and therefore, the learned Magistrate found that the application was an afterthought, which was made with an intention to drag on the proceedings. Hence, he has opined that Mallikarjuna committed no offence and accordingly dismissed the said application. ( 3 ) SO far, there is no Order on the application filed under Section 312 of the Code of Criminal Procedure. However, the Court is called upon to decide the application filed under Section 319 of Cr. P. C. Section 319 of the Code of Criminal Procedure empowers the trial Court to proceed against other accused person appeared to be guilty of the offence under the following circumstances : "1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. . . . . . xxxx xxxx xxxx xxxx 4) Where the Court proceeds against any person under sub-section (1) then - (a) the proceedings in respect of such person shall be commenced afresh, and the witness re-heard. . . . . . . . " ( 4 ) THIS provision in the Code is an improved version of Section 351 of Act V of 1898 Code. The changes having been introduced on the suggestion of the Law Commission to make it comprehensive so that even persons not attending the Court may be arrested or summoned as the circumstances of the case may require, and by deleting the words 'of which such Court can take cognizance' and by adding clause (b) it is clarified that the impleading of a new person as an accused in the pending proceedings will not make any difference insofar as taking cognizance is concerned. The section comes into operation at the post-cognizance stagewhen it appears to the Court from the evidence recorded at the trial that any person other than those named as offenders, appears to have committed any offence in relation to the incident for which the co-accused are on trial. This is a self-contained Section and the cognizance which a Magistrate takes under this Section in respect of an offence is independent of the provisions of Section 190 (c ). The summoning of the additional accused is part of the proceeding initiated after taking cognizance by the Magistrate. Therefore, the Magistrate is competent to proceed against the additional accused not sent up by the police. However, this Court in Balappa's case (1986 Cri LJ 653 (Karnataka)) noticed that this is an extraordinary power and should be used by the Court very sparingly and only if compelling reason exists for taking cognizance against the person of whom no notice has so far been taken. The powers of the Magistrate under Section 319, Cr. P. C. , is discretionary to proceed against a person who is not an accused at the trial, and this power can be exercised by the Court either suo motu or on an application by any one including an accused who is standing trial before the Court. But, this discretion of the Court is subject to the caution introduced by this Court in the Judgment cited supra and therefore, it should be used very sparingly. ( 5 ) THE question which arises for consideration is : whether the Trial Court has exercised its discretion properly? If so, whether the impugned order is sustainable in law? ( 6 ) I have already extracted the reasoning of the Trial Judge for dismissal of the petitioner's application and it is seen that the complainant himself has not whispered any allegation against the said Mallikarjuna, whom the petitioner wanted to bring as a co-accused. Therefore, this petition is hopelessly bad and there is no substance in this petition and it is liable to be rejected. ( 7 ) INCIDENTALLY, the question which arises for consideration is: whether a party to the proceeding who is incidentally an Advocate, can appear before the Court and argue his case with Robes? ( 8 ) THE petitioner Mr. M. C. S. Barna is a practicing Advocate, is not in dispute. ( 7 ) INCIDENTALLY, the question which arises for consideration is: whether a party to the proceeding who is incidentally an Advocate, can appear before the Court and argue his case with Robes? ( 8 ) THE petitioner Mr. M. C. S. Barna is a practicing Advocate, is not in dispute. Very surprisingly a provocative argument is exhibited in the Court Hall by the petitioner when he started arguing this case. It is brought to the notice of the Court by the opposite party that the advocate who was arguing the case was petitioner himself. Therefore, this Court brought to his notice the judgment of this Court in T. Venkanna's case and requested him to disrobe himself and argue his case. Instead of doing so, Sri. Barna contended that it is his fundamental right to appear as an Advocate before this Court and the Constitution guarantees such a right to appear and plead before the Court and the Judgment of this Court in T. Venkanna's case has not laid down the correct law and it requires reconsideration in the hands of the larger Bench. An application and an affidavit are also filed by him requesting this Court to refer this question to a larger Bench for its consideration. He has also relied upon the Judgment of the Apex Court in E. S. Reddi v. The Chief Secretary, Govt. of A. P. , (AIR 1987 Supreme Court 1550 ). This question is raised by him in his affidavit filed before this Court on 11-3-2002. The petitioner who is a practicing Advocate, filing Vakalath for himself and appearing for himself prayed for hearing and disposal in accordance with law. It was surprisingly noticed from his submission that the petitioner has not only insisted before the Court to argue his case both as a petitioner and also as an Advocate, but also disclosed that he represents his client as Bar- the petitioner has executed a Vakalath in favour of the Bar-the Advocate. In other words, a Vakalath is executed by the left hand- Mr. M. C. S. Barna- a party, in favour of right hand- Mr. M. C. S. Barna-an Advocate. The petitioner insisted upon his right to appear as such Advocate who is a party - the petitioner. It is difficult for the Court to adjust and appreciate this submission though Mr. M. C. S. Barna- a party, in favour of right hand- Mr. M. C. S. Barna-an Advocate. The petitioner insisted upon his right to appear as such Advocate who is a party - the petitioner. It is difficult for the Court to adjust and appreciate this submission though Mr. M. C. S. Barna persisted this Court either to give a finding or refer the matter to a larger Bench. It is contended in the affidavit as follows : "however at the outset another preliminary question was raised that whether I wanted to appear in this case as a party or as an advocate. In answer to this question I respectfully submitted that after filing my vakalath for the petitioner I have become the petitioner's advocate and no more the petitioner in person, just as a boy becomes a man by growth and development. I have exercised my rights both as a party and as an advocate. Though I am not the accused in this case, to judge comprehensively all the rights of a party it may be useful to take into consideration Section 303, Cr. P. C. which grants to the accused the freedom of choice in appointing his counsel. Presumably such freedom of choice is extended to parties other than the accused under Articles 14 and 16 of the Constitution. " he further contended as under :"this appeared to be a new idea and a new convention to be reconciled with. What troubled the judicial mind of this Hon'ble Court was that the giver of the vakalath and the acceptor of the vakalath cannot be one and the same person. Such dual capacity of the same person led to the controversy whether such a transaction violated any law in force or harmed the interests of justice. None of that kind ensued. The tangible illustration of such transaction is that the people of India gave unto themselves the Constitution on 26-11-1949. "he further argued in his affidavit as under :"proceeding further I submitted with due respect to late Mr. Govind Bhat, J. that in his judgment reported in AIR 1973 Mys. 127 his lordship was pleased to dismiss the Advocates Act, 1961 as having made no change in the prevailing convention of temporarily disqualifying an advocate from pleading as an advocate in his own cause. Govind Bhat, J. that in his judgment reported in AIR 1973 Mys. 127 his lordship was pleased to dismiss the Advocates Act, 1961 as having made no change in the prevailing convention of temporarily disqualifying an advocate from pleading as an advocate in his own cause. To arrive at such conclusion his lordship restrictedly defined an advocate as a person who pleaded for the cause of another person before Court, notwithstanding Section 29 of the Advocates Act, 1961 which differed from such restricted definition, and defined an advocate as a person who generally practised the profession of law in Courts, which practice did not exclude the practice of pleading for himself as an advocate before Courts. Furthermore Section 30 of the said Act avowedly declared that a duly enrolled advocate can practise the profession of law before all Courts as of right. In the light of these provisions the conclusions arrived at in AIR 1973 Mys 127, relying on ILR (1887) 9 All 180 and AIR 1956 SC 108 which were prior to the coming into force of the Advocates Act, 1961, were misconstrued and are now defunct and inapplicable. Therefore, it is necessary and expedient to place this matter before a larger Bench for overruling AIR 1973 Mys 127 as bad law. "he argued further as follows :"i respectfully submitted on 8-3-2002 that the scope of Sections 29 and 30 of the Advocates Act can be restricted by any Court, not for the status of the advocate as a party, but because of his conduct before Court as an advocate as demonstrated in a case reported in AIR 1987 SC 1550 . Incidentally, there a senior member of the Supreme Court Bar who appeared not in his own cause, but in the cause of his client, was not able to control his emotions and conduct himself dispassionately in making allegations against others to which the Supreme Court took exception. What I mean to say is that if I am able to conduct myself dispassionately with the required detachment to and non-identification of myself with the cause in which I appear as an advocate, as well as to the outcome of my efforts before Court, there will be no legal or moral justification in temporarily disqualifying me during these proceedings merely because I am forced to be a party due to corruption and mal-administration all around. For all these reasons I pray that the above matter be legally placed before a larger Bench for a scientific analysis of the concept of dual personality of an advocate appearing in his own cause, as a fiction of law essential for securing equality of opportunities and equality of all advocatives before law which are guaranteed by the Constitution in its inexhaustive list. " ( 9 ) AT the outset, I may point out that the Lordships of the then Mysore High Court, namely Mr. Justice G. K. Govinda Bhat and Mr. Justice V. S. Malimath, were considering the provisions of Section 30 of the Advocates Act of 1961. Though there are certain amendments to the Act, definition of 'advocate' and 'legal Practitioner' defined in Section 2 of the Advocates Act, 1961, remain unaltered. Section 2 (1) (a) defines : " (a) "advocate" means an advocate entered in any roll under the provisions of this Act;" section 2 (1) (i) defines : " (i) "legal practitioner" means an advocate, or vakil of any High Court, a pleader, mukhtar, or revenue agent;" the Advocates Act, 1961, is an Act to amend and consolidate the law relating to Legal Practitioners and to provide in the Constitution of Bar Councils and All India Bar. The Act was enacted in the Parliament in the Twelfth Year of the Republic of India. The Supreme Court in Salil Dutta v. T. M. and M. C. (P) Ltd. , (1993) 2 SCC 165 , has observed as follows"the advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal, i. e. , the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or the misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. " ( 10 ) THE Judgment of the Apex Court in E. S. Reddi v. The Chief Secretary, Govt. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. " ( 10 ) THE Judgment of the Apex Court in E. S. Reddi v. The Chief Secretary, Govt. of A. P. , (AIR 1987 Supreme Court 1550), in no way helps the petitioner herein in sustainance of the contention. It is a case where a Senior counsel while arguing a case before the Apex Court identified himself with the cause. At paras 9 and 13, the Supreme Court expressed its disapproval of the manner in which the arguments were advanced before them on behalf of the applicant in the following words :"not only were the arguments advanced with the undue vehemence and unwarranted passion, reflecting identification of interests beyond established conventions but were of degree not usual of enlightened senior counsel to adopt. The majesty of law and the dignity of Courts cannot be maintained unless there is mutual respect between the bench and the Bar and the counsel act in full realisation of their duty to the Court alongside their duty to their clients and have the grace to reconcile themselves, when their pleas and arguments do not find acceptance with the Court. Neither rhetoric nor tempestuous arguments can constitute the sine qua non for persuasive arguments. The counsel are expected to keep the sense of detachment and non-identification with the causes espoused by them. " ( 11 ) NOW let me turn to the provisions of Sections 29 and 30 of the Advocates Act ('act' for short ). Right to practise by Advocates is dealt in Chapter IV of the Act. Section 29 of the Act reads as follows :"29. Advocates to be the only recognised class of persons entitled to practise law. Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates. "section 30 of the Act reads as follows :"30. Right of advocates to practise.- Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends. . . . . . . . . "section 30 of the Act reads as follows :"30. Right of advocates to practise.- Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends. . . . . . . . . "the provisions of Sections 29 and 30 of the Act, undoubtedly empowers the Advocates as of right to practise throughout the territories to which this Act extends and they are the only class of persons entitled to practice the profession of law namely the Advocates. ( 12 ) IN the Concise Oxford Dictionary of Current English, 7th Edition, 1982, the meaning of 'advocate', 'pleader', etc. , is given as under : "advocate : One who pleads for another; one who speaks in favour of (proposal, etc.); professional pleader in Courts of justice; barrister. " "pleader : Address Court as advocate on behalf of either party, put forward a plea; make appeal to. ""counsel : 1. Consultation (take consult (with or abs.)); plan of action; advice of (of despair, action taken when all else fails; of perfection, advice guiding towards moral perfection, (fig.) Advice that is ideal but impracticable; keep one's own not confide in others.) 2. (body of) legal adviser (s) in cause. 3. Barrister. " "lawyer : Member of legal profession, esp. attorney or solicitor; person versed in law. " "barrister : (at law) - Person called to bar and having right of practising as advocate in the higher Courts; Lawyer. " in T. Venkanna's case at para 5, their Lordships have succinctly considered the meaning of 'advocate', 'counsel', 'barrister', etc. , as follows : "5. The word 'advocate' is a technical term in India and other countries whose legal system is based on the Roman law. The corresponding name in the English law Courts is 'counsel' or 'barrister'. Advocate, in law, is a person who practices the profession of pleading, the cause of another before a Court or a Tribunal. The universal practice in England and India has been that in cases where a Barrister or an Advocate appears before the Court as a litigant in person, he must not address the Court from the Advocates' table of in robes, but from the same place and in the same way as any ordinary member of the public. The universal practice in England and India has been that in cases where a Barrister or an Advocate appears before the Court as a litigant in person, he must not address the Court from the Advocates' table of in robes, but from the same place and in the same way as any ordinary member of the public. "their Lordships have considered certain authorities on this question at para 6 of the Judgment. At para-8, the High Court observed as follows :"the Act, in our opinion, has not made any change in the matter of this practice which has been observed in the Supreme Court and in the various High Courts. Section 30 of the Act on which reliance was placed by Sri Iyengar (Sri S. K. Venkataranga Iyengar) for the petitioner confers the right on every Advocate whose name is entered in the common roll to practise throughout the territory to which the Act extends in all Courts including the Supreme Court. Rule 12 made by this Court under Section 34 of the Act prescribes the mode of dress for Advocates appearing before this Court. When an Advocate whose name is entered in the common roll appears before the Court as a litigant in person he is not exercising any right under Section 30 of the Act. In the instant case no question of the right of the petitioner under the Act arose; no right conferred under the Act has been denied to him. The word 'practise' means 'the exercise of a profession'. Where an Advocate is a litigant in person he does not practise his profession and therefore, he cannot be permitted to argue with his robes on from the Advocates' table. He can address the Court from the same place and in the same way as any ordinary member of the public. Sri. Venkanna was not prepared to argue at the preliminary hearing without his robes on. " ( 13 ) THE enunciation made by the Division Bench of this Court in T. Venkanna's case and the pronouncements of the Apex Court cited supra on this question, leaves no doubt that Mr. M. C. S. Barna is not right in his submissions. It is undoubtedly true that a party whether in civil or criminal case has his absolute freedom in appointing a counsel of his choice. M. C. S. Barna is not right in his submissions. It is undoubtedly true that a party whether in civil or criminal case has his absolute freedom in appointing a counsel of his choice. But his idea is a new idea and new convention which the Courts do not find favour as it is neither supported by the Advocate's Act nor by well laid down conventions. His argument that an Advocate can execute a Vakalath as a party to himself who is incidentally an Advocate, is a situation which one cannot comprehend and it is beyond one's imagination. It is true that where a practising Advocate appearing before the Court, the Court recognises him as an Advocate when he argues a case wearing robes. But, a party cannot insist upon wearing robes and argue his own cause under the garb of an Advocate. This is the simple difference between a litigant and an Advocate. This is clarified by the Apex Court in Salil Dutta's case cited supra where it is held that Advocate is an agent of the party; his acts and the statements, made within the limits of authority given to him, are the acts and statements of the principal, i. e. , the party who engaged him. That distinguishes a litigant or a party from his counsel. In my opinion, it needs no further comments. It is true that the people of India have given unto themselves the Constitution of India. Unfortunately, the Advocates Act has not empowered a litigant to wear the robes and argue the cause in which he is interested. The convention which Mr. Barna wanted this Court to lay down is a dangerous convention, which would create anamoly namely that any litigant can argue a case wearing the robes. Advocates Act and Rules and the High Court Rules referred to in Venkanna's case prescribe certain dress code to the members of the Bar for those who have enrolled as Advocates and not Advocate or Counsel who prefers to practice in the Court of law can do so without wearing the professional robes which a litigant or a party are not entitled in law to wear. The right which an Advocate enjoys as such cannot be granted to a party-a litigant, which Mr. Barna claims. Judgment of this Court in Venkanna's case needs no reconsideration in the hands of the larger Bench only because Mr. The right which an Advocate enjoys as such cannot be granted to a party-a litigant, which Mr. Barna claims. Judgment of this Court in Venkanna's case needs no reconsideration in the hands of the larger Bench only because Mr. Barna disagrees with the pronouncement of the Court. This Court has no occasion to disagree with the opinion expressed by the Bench of this Court and it is the duty and obligation of the learned Counsel to accept the law of this Court. The said judgment has not so far been challenged nor any judgment contrary to the pronouncements in Venkanna's case is made. The pronouncements of the Apex Court cited supra have in fact confirmed the view held by the then Mysore High Court in Venkanna's case. The scope and extent of Section 29 of the Advocates Act are explained by the Act itself and those powers are restricted only to the Advocates on rolls of the Bar Council and do not extend to an individual. We have yet to find an Advocate who represents his own cause and who acts or conducts himself dispassionately and detachment, without identification while arguing his case. The party is not debarred from appearing before the Court and argue his cause, but he can do so as any ordinary member of the public and he has a right of audience before the Court. Therefore, in this case, Mr. M. C. S. Barna not only loses his case on merits, but also on the ground that he fails to disrobe himself while arguing the case. The either case, I find no merits in the contentions canvassed. ( 14 ) THEREFORE, this Criminal Petition is dismissed. Petition dismissed. --- *** --- .