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2004 DIGILAW 561 (KER)

Johnson v. State of Kerala

2004-11-17

J.M.JAMES

body2004
Judgment :- J.M. James, J. The non-appearance by the counsel for the complainant before the Magistrate Court when the case was called and the absence of the complainant were sufficient grounds for the Magistrate to resort to S.256 (1) Cr.P,C.; to acquit the accused and dismiss the complaint, and also whether the counsel was not bound by the authority of the Vakalath executed by the complainant to continue to represent him unless the, Vakalath ceased to operate; are the questions posed before me for decision in this case. 2. The facts show that the complainant filed a complaint under S.138 of the Negotiable Instruments Act, 1881, in short ‘the Act’, before the Judicial First Class Magistrate II, Sulthan Bathery. When the complaint came up for hearing on 30.1.2002, counsel appearing for the complainant filed an application stating that the complainant was detained in judicial custody, in jail, in the State of Karnataka and, therefore, his absence for that day may be condoned. That application was allowed and the Court gave a fairly long adjournment, to 22.4.2002. On that day, when the case was taken up, neither the complainant nor the counsel, who filed the application on 30.1.2002, were present. There being, thus, no representation, the learned Magistrate acquitted the accused under S.256(1) Cr.P.C. The same is under challenge in this appeal. 3. The learned counsel for the appellant submitted that as the counsel for the appellant did not know the further developments in the criminal case in which the appellant was detained in judicial custody, he could not make any effective submission before the Court. It is also further submitted, that since the matter was brought to the notice of the Court as per the earlier application that the complainant was in jail in connection with another criminal case, the Court ought to have been more liberal and dismissal of the complaint and acquittal of the accused in the case was not as per the discretion conferred on the Magistrate by S.256 (1) Cr.P.C. 4. The learned counsel for the 2nd respondent/accused contended that when an advocate is appointed as per Rr.30 and 31 of the Criminal Rules of Practice, the advocate continues to represent the complainant until the termination of the Vakalath, or till the death of either of the parties, or till the Vakalath is withdrawn by the complainant. The learned counsel for the 2nd respondent/accused contended that when an advocate is appointed as per Rr.30 and 31 of the Criminal Rules of Practice, the advocate continues to represent the complainant until the termination of the Vakalath, or till the death of either of the parties, or till the Vakalath is withdrawn by the complainant. Till such time, the counsel is bound to protect the interest of the complainant. The failure on the part of the counsel cannot be a ground to interfere with the order of acquittal that was passed by the Magistrate under S.256(1) Cr.P.C. Counsel relied on the decision reported in Mulloor Chit Fund v. Pathumma Beevi, 2004 (2) KLT 1078, Motilal v. L.Rs. of late Poonampuri, AIR 2000 Raj. 65, and Chengan Souri Nayakam v. A.N. Menon, AIR 1968 Ker. 213. 5. Under S.29 of the Advocates Act, 1961, Advocates alone are entitled to, practice the profession of law. S.30 of the Act lays down that an Advocate, whose name is entered in the State roll shall alone be entitled, as of right, to practice in the Courts in India. Rr.30 and 31 of the Kerala Criminal Rules of Practice, 1982 deals with the private pleaders and the procedure to be followed to appear and represent the parties before the Court. In Mulloor Chit Fund case, cited above, this Court had occasion to consider the effect of service of notice in the revision petition on the Advocate who appeared in the appeal and a learned Single Judge held, relying oil S.107(1) and O.III R.4 of the Code of Civil Procedure that such service of notice on the Advocate would be sufficient notice, unless the counsel submits to the Court that he has no instruction. In Motilal’s case (supra), the Rajasthan High Court also had' occasion to consider the same question and the Court held that once all advocate is engaged as a pleader by a client, the authority of the Advocate to represent the client continues to remain in force until it is determined with the leave of the Court in writing, signed by the client, or the pleader. Relying on the above authority, learned counsel Mr. Relying on the above authority, learned counsel Mr. George Abraham contended that though the complainant was in jail, the advocate had the responsibility to, continue to represent the complainant and, therefore, his non representation, when the case was taken up on 22.4.2002, would make the Court to resort to S.256(1) Cr.P.C. 6. As discussed above, on 30.1.2002 itself it was brought to the notice of the Court that complainant was in jail in Mysore in connection with another criminal case. That could probably be the reason for the Court to adjourn the case to 22.4.2002. It was the duty of the counsel to represent his client, the complainant, on that posting date and to submit as to what happened to his client and whether he is having any instruction or not. The non-appearance of the complainant and the non-representation of the, Advocate on that day is a failure on the part of the Advocate, in view of the authorities discussed above. Therefore, it is for the complainant to proceed against the Advocate, if he so chooses, according to the law of the land, for the damages suffered by him at the hands of the Advocate. This view is fortified by the decision of the Supreme Court in Ramon Services (P) Ltd. v. Subhash Kapoor, 2001 (1) KLT 34 (SC). That was a case where, because of the. non-appearance of the Advocate, due to strike, the defendant in a suit was declared ex parte. The Supreme Court held in that case that “the litigant who suffers entirely on account of his advocate’s non-appearance in Court, has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case”. 7. The next point to be considered is whether a Court, which had occasion to hear the counsel regarding the judicial detention of the complainant, has to adopt a liberal approach while resorting to S.256(1) Cr.P.C. Of course, the Court below, considering the judicial detention of the Complainant, gave-a fairly long adjournment, from 30.1.2002 to 22.4.2002. On 22.4.2002, because of the non-appearance 0f the complainant as well as the Advocate, the complaint was dismissed and the accused was acquitted. It was brought to my notice, during the hearing, that the complainant was accused in a counterfeit currency note case under S.489B IPC. On 22.4.2002, because of the non-appearance 0f the complainant as well as the Advocate, the complaint was dismissed and the accused was acquitted. It was brought to my notice, during the hearing, that the complainant was accused in a counterfeit currency note case under S.489B IPC. Obviously, there may have been no occasion for the complainant to have effective communication with his lawyer. But, the counsel for the 2nd respondent/accused submitted that the very Same Advocate was assisting the complainant in that criminal case as well. But, except this submission, no document is forthcoming to support that submission. Therefore, the conclusion, that could be arrived at is that because of the judicial detention of the complainant in jail in Mysore, the complainant had no effective opportunity to communicate with his counsel. More over, he was prevented, due to sufficient reason, as stated above, from appearing before the Court. The authority of the Advocate to represent the complainant continued, as the vakalath was not terminated. The Advocate was bound to represent the facts within his knowledge and information, about his client, more particularly when the complainant was in judicial detention in Mysore jail. Thus, there was failure on the part of the counsel in not representing the complainant, when the case was called. 8. The proviso to S.256 Cr.P.C. gives a judicial discretion to the Magistrate to form an opinion about the necessity of the personal attendance of the complainant, in a given situation and then to proceed with the case with an adjournment, or to acquit the accused. In the case at hand, the Magistrate did not record, in the impugned order, his opinion about the necessity of the appearance of the complainant on the date of posting. The Court straight away proceeded on the same day itself, dismissing the complaint and acquitting the accused. As the complainant was in jail, an opportunity ought to have been given to the complainant, particularly in view of the petition filed by the Advocate on the previous posting of the case, on 30.1.2002. In such situation, the Magistrate ought to have applied his judicial discretion to come to a definite conclusion whether the complaint should be dismissed arid the accused acquitted. A mechanical passing of an order, without judicial application of mind would cause unbearable hardships to the complainant, particularly in a situation like the one under discussion in this case. In such situation, the Magistrate ought to have applied his judicial discretion to come to a definite conclusion whether the complaint should be dismissed arid the accused acquitted. A mechanical passing of an order, without judicial application of mind would cause unbearable hardships to the complainant, particularly in a situation like the one under discussion in this case. Therefore, resorting to S.256(1) Cr.P.C. must be with the required judicial caution. The negotiable instrument, which is the subject matter of the complaint in C.C.712/2001 on the file of the Judicial First Class Magistrate, Court-II, Sulthan Bathery, which was dismissed through, the impugned order, relate to an amount of Rs.85,000/-. Because of the peculiar facts stated above, I am of the opinion that the complainant should not be put to loss because of the inaction on the part of the counsel and must be given an opportunity, so that he could continue to prosecute the complaint before the Court below. 9. I in view of the above discussions, set aside the impugned judgment of the Court below and restore C.C.712/2001 to the file of the Judicial First Class Magistrate Court-II, Sulthan Bathery. Parties shall appear before the Court below on 27.12.2004. The Magistrate shall dispose of the case within two months from the date of appearance of the parties. This appeal is disposed of as above.