TaxTMI 
TaxTMI 
2004 (11) TMI 520
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....allowed. The short facts are that one Mrs. Bolly Cariyappa Hindley filed two complaints for prosecution of the appellant under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act') in which cognizance was taken and the accused was summoned. During trial, the complainant died leaving behind her son Peter Baldwin Jr. and daughter Mrs. Nina Baldin Eddy who were staying in United 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 prosecu....
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....er than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission; Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. (2) Any person conducting the prosecution may do so personally or by a pleader. " The question as to whether heirs of the complainant can be allowed to file an application under Section 302 of the Code to continue the prosecution is no longer res integra as the same has been concluded by a decision of this Court in the cas....
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....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 authorized to practise in the courts by the authority prescr....
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.... with, and this Court observed thus at pages 619 and 620: "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", (vide Jackson & Co. v. Napper Ch D, (1886) 35 Ch D 162 at p. 172). 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, (vide Ravulu Subba Rao v. CIT AIR 1956 SC 604). 15. Section 2 of the Power of Attorney Act cannot override the specific provision of a statute which requires tha....
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....ourt. Beasley, C.J., who delivered the judgment on behalf of the Full Bench stated the legal position thus: (AIR Headnote) "An agent with a power of attorney to appear and conduct judicial proceedings, but who has not been so authorised by the High Court, has no right of audience on behalf of the principal, either in the appellate or original side of the High Court\005. There is no warrant whatever for putting a power of attorney given to a recognized agent to conduct proceedings in court in the same category as a vakalat given to a legal practitioner, though latter may be described as a power of attorney (which) is confined only to pleaders, i.e., those who have a right to plead in courts."....
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..... 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 dis....