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2011 DIGILAW 706 (GUJ)

RAJIV A. JOSHI v. STATE OF GUJARAT

2011-10-11

RAJESH H.SHUKLA

body2011
JUDGMENT 1. The present petition has been filed by the petitioner, Rajiv A. Joshi, who appears as party-in-person for the prayer inter alia that the order passed by the Learned Additional Sessions Judge, City Sessions Court No.12, Bhadra, Ahmedabad in Criminal Revision Application No.281 of 2011 dated 06.08.2011 and also the order passed by the Learned Metropolitan Magistrate, Court No.9 in Criminal Case No.5869/2010 (Old Case No.983/2003) dated 09.05.2011 may be quashed and set aside on the grounds stated in this petition. It is also prayed that appropriate relief may also be granted. 2. The facts of the case briefly stated are that the petitioner, party-in-person, who was original complainant, had filed a complaint under Section 138 of the Negotiable Instrument Act and the family friend, Ms.Smita Patel may be permitted to remain present and make submissions on his behalf in the said trial. The said application was not entertained and rejected by the Court of the Metropolitan Magistrate vide order dated 09.05.2011 after considering the submissions and the provisions of Section 32 of the Advocates Act, 1961, which was challenged by the petitioner-original complainant by way of Criminal Revision Application No.281 of 2011 before the City Sessions Court, Ahmedabad. However, after considering the submissions of both sides and also considering the provisions of the Advocates Act, the Sessions Court rejected the said Revision Application vide impugned order dated 06.08.2011, which is challenged in the present petition. 3. The submission has been made by the party-in-person, who is present in the Court with Ms.Smita Patel, who has been permitted to address the Court on behalf of the petitioner-party-in-person. She has referred to the details and submitted that both the Courts below have failed to appreciate the fact as well as the judgment of this Court reported in case of Jaymal Thakore V/s Charity Commissioner, Gujarat State & Ors., 2001 (3) GLR 2124 . It was submitted that the petitioner in that case was representing the client as recognized agent and, therefore, it was objected and the permission was not granted. However, in the facts of the present case, the petitioner is present on his behalf and Ms.Smita Patel as a family member is seeking permission from the Court to assist him and, therefore, the ratio of the said judgment would not have any applicability. However, in the facts of the present case, the petitioner is present on his behalf and Ms.Smita Patel as a family member is seeking permission from the Court to assist him and, therefore, the ratio of the said judgment would not have any applicability. She has also referred to the provisions of the Advocates Act and submitted that it is not a professional brief which she would be arguing on behalf of someone but she is seeking permission to assist the petitioner, who appears as party-in-person in the capacity as a next friend and, therefore, the provisions would not apply. She has also referred to and relied upon the judgment of the Hon'ble Supreme Court in case of T.C. Mathai & Anr. V/s (The) District & Sessions Judge, Thiruvananthapuram, Kerala, 1999 (1) GLH 829. She has emphasized the observation made in this judgment in Para No.10 that if the person is not an Advocate, permission is required but non-advocate can also represent and assist the Court. 4. Ms.Smita Patel appearing for the party-in-person has also referred to and relied upon the judgment of the Hon'ble Supreme Court in case of Harishankar Rastogi V/s Girdhari Sharma & Anr. reported in AIR 1978 SC 1019 and pointedly emphasized the observations made in Para No.4. 5. Reference is also made to Section 29 of the Advocates Act read with Section 32 of the Advocates Act. It was submitted that the provisions of Section 32 of the Advocates Act start with nonobstante clause and it clearly provides that in a particular case with the permission of the Court, the person, who is not an advocate and recognized agent, can appear. She has also referred to the ground of the Appeal, particularly Paragraph No.16 stating that initially the Advocates were engaged but they had a bad experience. In fact, they have been persuaded to keep away from the accused, who are influential persons. Therefore, it was decided to contest the proceedings without engaging any advocate by the party-in-person with the help of next friend like Ms.Smita Patel. 6. Reliance is also placed on the judgment reported in AIR 2003 AP 317 (Particular Nos.7, 8, 9, 11 & 13), AIR 2005 SC 439 , 2004 (11) SCC 547 . 7. Therefore, it was decided to contest the proceedings without engaging any advocate by the party-in-person with the help of next friend like Ms.Smita Patel. 6. Reliance is also placed on the judgment reported in AIR 2003 AP 317 (Particular Nos.7, 8, 9, 11 & 13), AIR 2005 SC 439 , 2004 (11) SCC 547 . 7. Learned counsel, Mr.Vakharia appearing for the respondent no.2 has raised preliminary objection that Ms.Smita Patel cannot address as party-in-person in place of Mr.Rajiv Joshi, who has filed this petition and he can appear as party-in-person. He has strongly submitted that the party-in-person means the person, who can represent his case on his own without engaging any lawyer but he cannot be permitted to address on behalf of somebody else like advocate, who is authorized as per the provisions of the Advocates Act. Learned counsel, Mr.Vakharia has referred to the provisions of the Advocates Act and submitted that the Bar Council is granting such permission to the members, who are engaged in profession. Therefore, the party-in-person has to address and take up his case but cannot engage someone on his behalf who is not an advocate. He, therefore, strenuously submitted that Ms.Smita Patel is not a petitioner (party-in-person) and, therefore, she cannot plead or address on behalf of the petitioner (party-in-person) as it is not permissible as per the Advocates Act. He has also referred to Section 29 of the Advocates Act and submitted that only Advocate as a class are the person entitled to practise the law and can appear. Similarly, he has submitted that Section 33 of the Advocate Act also provides that no person shall be entitled to practise in the Court or before any authority unless he or she is enrolled as an Advocate under this Act. He has also referred to the judgment reported in case of Jaymal Thakore (supra) and submitted that the discussion has been made referring to the provisions of the Advocates Act. He pointedly referred to Para No.16 of the said judgment and submitted that even though the provisions is made in Section 32 of the Advocates Act, it does not confer any power and discretion on the Court to permit any non-advocate to plead or practise law in a Court. 8. He pointedly referred to Para No.16 of the said judgment and submitted that even though the provisions is made in Section 32 of the Advocates Act, it does not confer any power and discretion on the Court to permit any non-advocate to plead or practise law in a Court. 8. Learned counsel, Mr.Vakharia has submitted that the issue is covered by the judgment of the Division Bench of this Court and, therefore, in view of the observations made in the said judgment, it cannot be permitted. 9. The party-in-person has also given written submissions though sufficient personal hearing was given. 10. In view of the rival submissions, it is required to be considered whether the impugned order passed by the Sessions Court in Criminal Revision Application No.281 of 2011 dated 09.05.2011 can be said to be erroneous or not. 11. The moot question which is required to be considered is whether the applicant, who appears as party-in-person along with Ms.Smita Patel could be permitted to appear and address the Court in view of the provisions of the Advocates Act as well as Section 2(q) of the Criminal Procedure Code. As it is evident from the facts stated that the applicant, Rajiv Joshi is the original complainant, who has lodged complaint under the provisions of the Negotiable Instrument Act against the respondent no.2-accused, in which, though bailable and non-bailable warrants were issued, the accused and his advocate did not remain present continuously and, hence, the applicant submitted an application under Section 82 of the Criminal Procedure Code, which was granted vide order dated 16.10.2010. The original accused-respondent no.2 had challenged the said order by way of Criminal Revision Application No.467 of 2010, which was confirmed by the Sessions Court vide judgment and order dated 10.03.2011. Therefore, it has been prayed that the Power of Attorney, Ms.Smita Patel may be permitted to appear and plead in the proceeding on behalf of the applicant. 12. The contention has been raised referring to the provisions of Sections 29 and 33 of the Advocates Act that who can appear and plead in the Court. Much reliance has been placed upon Sections 29 and 33 of the Advocates Act contending that the person, who is not enrolled as an advocate in this act, cannot appear before any Court and the advocate alone is entitled to practice. Much reliance has been placed upon Sections 29 and 33 of the Advocates Act contending that the person, who is not enrolled as an advocate in this act, cannot appear before any Court and the advocate alone is entitled to practice. This submission is required to be considered in background of the facts, which have emerged on record that the complaint is filed under the Negotiable Instrument Act and the person is entitled to pursue his remedy appearing as party-in-person. The Advocates Act has a reference to the qualification required for the members of the profession to carry on his profession as an Advocate appearing for the client. Therefore, Section 33 of the Advocates Act provides that any person, who is not enrolled as Advocate cannot appear in any Court, meaning thereby, unless the person is enrolled as an Advocate, he cannot appear before any Court as an Advocate and cannot carry on profession of Advocate appearing for his client. However, the facts of the case are that the applicant is the complainant himself, who is entitled to appear in his own matter and it is open for him as to whether engage an advocate or not. He can have an assistance of a next friend like Ms. Smita Patel, who is not appearing or representing as an advocate by virtue of the profession. In other words, Ms.Smita Patel is not claiming to appear as a member of profession of Advocate to represent the client, but she is seeking permission to appear to assist as a next friend to the applicant qua his matter only. It is not the case that if Ms.Smita Patel can be permitted to appear in other matters of various parties then in that case, the provisions of Section 33 of the Advocates Act would be attracted to the applicant. Unless a person is enrolled as advocate, he cannot appear as professional or as advocate on behalf of somebody alone. But in the present case, she is not claiming that she may be permitted to appear as advocate or in professional capacity for others but as a next friend in that particular matter, the permission is sought for. It is in this background, the provisions of Section 32 of the Advocates Act and Section 2(q) of the Criminal Procedure Code are required to be considered. It is in this background, the provisions of Section 32 of the Advocates Act and Section 2(q) of the Criminal Procedure Code are required to be considered. Section 2(q) of the Criminal Procedure Code provides that :- “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 appointed with the permission of the Court to act in such proceeding.” 13. Thus from this definition, it is evident that it means a person, who is authorized by law and the definition is inclusive so as to provide that it includes any other persons appointed with the permission of the Court to act in such proceeding, meaning thereby, with the permission of the Court, any person could be appointed to act in the proceeding. A useful reference can also be made to Section 32 of the Advocates Act, which reads as under :- “32. Power of Court to permit appearances in particular cases.- Nothwithstanding 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. 14. Thus, the aforesaid Section starts with nonobstante clause and clearly provides that the Court may permit any permission, who is not enrolled as an advocate to appear before it in any particular case. This itself would clearly provide that the provisions of Sections 29, 30 and 33 of the Act have to be read in context of Section 32, which clearly provides for a discretion to the Court for allowing the party to appear before it in a particular case. In other words, the permission can be granted to a party, who is not enrolled as Advocate to appear before it in a particular case only and not as a member of that profession for other but can appear for a particular matter with the permission of the Court like a next friend to assist the Court. Therefore, this exception has been specifically carved out for a limited purpose which in turn will imply that there is no bar as sought to be canvased. 15. Therefore, there is no absolute bar for permitting other person to appear in the proceeding before the Court. Therefore, this exception has been specifically carved out for a limited purpose which in turn will imply that there is no bar as sought to be canvased. 15. Therefore, there is no absolute bar for permitting other person to appear in the proceeding before the Court. The observation made by the Hon'ble Apex Court in a case of T.C. Mathai & Anr. (supra) is required to be considered, wherein the Hon'ble Apex Court has considered both the provisions i.e. the Power of Attorney Act and Advocates Act and the observations made by the Hon'ble Apex Court in a judgment reported in AIR 1978 SC 1019 is also quoted referring to Section 2(q) of the Criminal Procedure Code. It has been observed in Para No.10 as under :- “But if the person proposed to be appointed by the party is not such a qualified person the court has first to satisfy itself whether the expected assistance would be rendered by that person. The reason for the Parliament for fixing such a filter in the definition clause [Sec.2(q) of the Code] that prior permission must be secured before a non-advocate is appointed by the party to plead his cause in the court, is to enable the court to verify the level of equipment of such person for pleading on behalf of the party concerned.” 16. This again will clearly suggest that after verification in a given case, the Court may permit any other person as a next friend to appear for the party. 17. A reference made to the judgment of the Hon'ble Apex Court reported in case of T.C. Mathai (supra), which has referred to earlier decision as stated above has to be read in context of the given set of facts, where in earlier judgment of the Hon'ble Apex Court, the party/accused sought to be represented by the Power of Attorney and then it was declined. However, in this judgment referring to the provisions of the Criminal Procedure Code, it is clearly laid down that Section 303 of the Criminal Procedure Code entitles a person to the right of being defended by a “pleader” of his choice when the proceedings are initiated against him under the Code. The provisions of Section 2(q) of the Advocates Act defines “pleader”. As discussed above, it allows any person with the permission of the Court to act in the proceedings. 18. The provisions of Section 2(q) of the Advocates Act defines “pleader”. As discussed above, it allows any person with the permission of the Court to act in the proceedings. 18. Therefore, the provisions of Section 2 of the Power of Attorney Act cannot overreach other statute like the Criminal Procedure Code and when the Criminal Procedure Code requires appearance of the accused in the Court, there is no compliance with it if the Power of Attorney remains present on his behalf. However, this situation is different from a fact like in the present case that the complainant desires to have an assistance of a next friend to represent his case before the Court effectively. Therefore, this judgment has to be read in the context of the facts. 19. Similarly, reliance placed on the judgment of this Court reported in case of Jaymal Thakore V/s Charity Commissioner, Gujarat State & Ors., 2001 (3) GLR 2124 also has to be considered in the context of the facts that the applicant, who was a Chartered Accountant and in his professional capacity claims a right to represent his clients both as “recognised agent” and a “Pleader”. It is in this background of the facts and also considering the provisions of the Advocates Act, the observations have been made that he cannot appear. In the facts of the present case, the situation is totally different where a person, who appears as party in person, desires to have an assistance of a next friend, who is not an advocate. It is well accepted that next friend, who is appearing, is not claiming to appear as advocate or member of the profession, who is enrolled as per the Advocates Act but is permitted to appear to assist the party-in-person for his matter only and not in the professional capacity as an Advocate. Therefore, the provisions of Sections 30, 32 and 33 of the Advocate Act has to be read when the person is claiming to appear in his capacity as professional to represent the case of other person as a client. In the facts of the present case, the permission is sought by Ms.Smita Patel to appear with the party-in-person as a next friend for his assistance and not in the capacity as any member of the profession or Advocate that she may be permitted to appear for other parties in different matters. In the facts of the present case, the permission is sought by Ms.Smita Patel to appear with the party-in-person as a next friend for his assistance and not in the capacity as any member of the profession or Advocate that she may be permitted to appear for other parties in different matters. Therefore, this will not have any application and the objection raised by learned counsel, Mr.Vakharia is without any merits. 20. However, it is also clarified that Ms.Smita Patel is permitted to appear and plead in the Court. But it should be only to the extent of rendering her assistance to the party-in-person but cannot depose or file any application on behalf of the party-in-person. Therefore, the observation made by the City Sessions Court in the impugned order are misconceived, particularly when, there is specific observations referring to the apprehension that if such permission is allowed to appear, it would wipe out the profession. It is also well accepted that the next friend is permitted in the departmental proceedings or other proceedings to assist the delinquent. Therefore, there cannot be any total bar, which is not even contemplated in Section 32 of the Advocates Act. As discussed above, reading of Section 32 of the Advocates Act with Section 2(q) of the Criminal Procedure Code would make the position clear that what Section 32 of the Advocates Act provides that the Court or authority may permit any person, who is not enrolled as an Advocate to appear before it in any particular case, meaning thereby, the permission can be granted confining to that particular case only and not permitting him/her to appear as professional for various litigations or the clients. Similarly, Section 2(q) of the Criminal Procedure Code again referred in definition of “pleader” clearly provides that it includes any other person appointed with the permission of the Court to act in the proceedings, meaning thereby, a person, who is not a pleader or authorized under any law to practice in the Court may also be appointed with the permission of the Court to act in the proceedings. Again such permission has to be confined to that particular case only where such permission is granted and cannot be a general licence permitting to appear for different clients as an Advocate or profession. It is in these set of circumstances, the present petition deserves to be allowed. 21. Again such permission has to be confined to that particular case only where such permission is granted and cannot be a general licence permitting to appear for different clients as an Advocate or profession. It is in these set of circumstances, the present petition deserves to be allowed. 21. With the aforesaid observations, the present petition stands allowed. The impugned order passed by the Additional Sessions Judge, City Sessions Court No.12, Bhadra, Ahmedabad in Criminal Revision Application No.281 of 2011 dated 06.08.2011 confirming the order passed below application, Exh.33 by the Metropolitan Magistrate, Court No.9 in Criminal Case No.5869 of 2010 (Old No.983/2003) dated 09.05.2011 is hereby quashed and set aside. The permission, as prayed for to plead in the trial of Criminal Case is granted to Ms.Smita Patel to assist the applicant-party-in-person in a particular matter only. Rule is made absolute to the aforesaid extent.