TMI Blog2004 (11) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... the power of attorney holders to continue the prosecution on their behalf. In the result, the appeals are allowed, impugned orders are set aside and the petitions under Section 302 of the Code filed before the trial court are rejected giving liberty to the heirs of the complainant to file fresh applications under Section 302 of the Code. - Appeal (crl.) 1222-23 of 2002 - - - Dated:- 4-11-2004 - B.N.AGRAWAL AND H.K.SEMA, JJ. JUDGMENT These appeals by special leave have been filed against judgment rendered by Karnataka High Court in revision applications upholding order passed by the Additional Chief Metropolitan Magistrate, Bangalore, in two complaint cases whereby petitions filed under Section 302 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ) for allowing power of attorney holders of heirs of the original complainant to continue the prosecution were 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson 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 case of Ashwin Nanubhai Vyas v. State of Maharashtra Anr., 1967(1) SCR 807, in which case the Court was dealing with a case under Section 495 of the Code of Criminal Procedure, 1898, which is corresponding to Section 302 of the Code. In that case, it was laid down that upon the death of the complainant, under the provisions of Section 495 of the said Code, mother of the complainant could be allowed to continue the prosecution. It was further laid down that she could make the application either herself or through a pleader. Undisputedly, in the present case, the heirs themselves have not filed the applications to continue the prosecution, rather the same have been filed by their power of attorney holders. Thus, the question that arises would be as to whether power of attorney holder can be treated to be pleader of heirs of the complainant? Pleader is defined in Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict Sessions Judge, Thiruvananthapuram, Kerala, (1999) 3 SCC 614. In that case, power of attorney holder filed a petition before the session court for permitting him to represent the accused persons but the prayer was declined and the same was confirmed by a Single Judge of the Kerala High Court as well as by Division Bench, on appeal being preferred. When the matter was brought to this Court, order of session court declining to grant permission was not interfered 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 stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eader" for the party in criminal proceedings, unless the party secures permission from the court to appoint him to act in such proceedings. The respondent-couple have not even moved for such a permission and hence no occasion has arisen so far to consider that aspect." In the case of T.C.Mathai (supra), this Court was considering as to whether under Section 205 of the Code, personal attendance of accused could be dispensed with and permission could be granted to the power of attorney holder to represent the accused and it was laid down that after dispensing with personal attendance of an accused, he could be allowed to be represented only by a "pleader" within the meaning of Section 2(q) of the Code and "pleader" may be of two kinds. The first refers to legal practitioners who are authorised to practise law; and the second "any other person" appointed by a party with the permission of the court to represent him in the proceeding, permission for which must be sought by the party concerned meaning thereby that if an accused wants himself to be represented by a power of attorney holder in court, he should himself apply to the court seeking such a permission and no such permission ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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