TaxTMI 
TaxTMI 
2004 (11) TMI 520
X X X X Extracts X X X X
X X X X Extracts X X X X
.... States of America, as such they executed a general power of attorney in favour of Mr. John Curtis and Mrs. Annie Cariappa respectively. The two general power of attorney holders of the aforesaid heirs filed applications under Section 302 of the Code in the aforesaid cases before the trial court for permitting them to continue the prosecution therein. Which prayer was contested by the accused, but the learned magistrate allowed the applications and permission was granted to continue the prosecution. Challenging the aforesaid order, two revision applications were filed before the High Court of Karnataka by the accused which having been dismissed, the same necessitated filing of these appeals by special leave. Shri Dhruv Mehta, learned advocate appearing on behalf of the appellant, submitted that the power of attorney holders had no right to file an application under Section 302 of the Code to continue the prosecution which could have been filed by heirs of the complainant, as such, the petitions under Section 302 of the Code were not maintainable and liable to be dismissed on this count alone. Shri K.R.Chaudhary, learned Senior Advocate appearing on behalf of the respondents, on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eans a person authorized by or under any law for the time being in force, to practise in such Court, and includes any other appointed with the permission of the Court to act in such proceeding;" The definition envelopes two kinds of pleaders within its ambit. The first refers to legal practitioners who are authorized to practise law and the second refers to "any other person". If it is the latter, its essential requisite is that such person should have been appointed with the permission of the court to act in such proceedings. This is in tune with Section 32 of the Advocates Act, 1961 which empowers a court to permit any person, who is not enrolled as an advocate, to appear before it in any particular case. But if he is to represent another person in a criminal court, such permission should be sought for by that person. It is not necessary that the "pleader" so appointed should be the power of attorney holder of a party in the case. What seems to be a condition precedent is that his appointment should have been preceded by grant of permission of the court. It is for the court to consider whether such permission is necessary in the given case. Legally qualified persons who are au....
X X X X Extracts X X X X
X X X X Extracts X X X X
....earance 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 of the 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. 16. In this context reference can be made to a decision rendered by a Full Bench of the Madras High Court in M.Krishnammal v. T.Balasubramania Pillai AIR 1937 Madras 937 when a person, who was the power-of-attorney holder of another, claimed right of audience in the High Court on behalf of his principal. A Single Judge referr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rney holder. The language of Sections 205 and 302 of the Code is similar. Under Section 302 of the Code, a party can make an application himself to continue the prosecution or the same can be made by a pleader. As provided under Section 2(q) of the Code, the prayer to continue the prosecution can be made either by a legally qualified person, who is authorised to practise in the court under the Advocates Act; or by any other person which would obviously include a power of attorney holder in which eventuality such permission can be granted by the court where the prosecution is pending only if it is sought by the person who is entitled to continue the prosecution and not by the power of attorney holder. Under Section 205 of the Code, an accused is required to appear in person but his personal appearance can be dispensed with and he can be allowed to be represented by a pleader. Likewise, under Section 302 of the Code, a person, who is entitled to continue the prosecution, is required to make an application himself but under both the provisions aforesaid, instead of taking steps personally, a party can be represented through a pleader. Power of attorney holder can represent the concern....