In Re: Ramasrinivasan

Anantanarayanan, J.—This is a proceeding in criminal revision by the Petitioner (Ramasrinivasan) who prayed the First-class Magistrate of

Karikal (Pondicherry State) u/s 4(1)(r)(2) of the Code of Criminal Procedure to permit one Sri K. Balasundaram, an Advocate of Mayuram, to

act for the Petitioner during the trial.

After setting forth the substance of the prayer, the learned Magistrate referred to the Arrete, dated 22nd June 1932, which, in effect, limited the

Advocates who could appear before the Courts at Karikal, Pondicherry, etc., to defined members of the local Bar of those Courts. The learned

Magistrate added that he had made a reference to the Chief of the Judicial Department, Pondicherry, and that that authority, in his reply, had

referred to the above Arrete and observed that it should be enforced rigorously:

and that for the present the Advocates of the Indian Territory cannot be admitted to appear before the Courts of the Pondicherry State:

The learned Magistrate then proceeded to dismiss the request of the revision Petitioner to permit Sri Balasundaram to appear for him u/s 4(1)(r) of

the Code of Criminal Procedure, which has been recently extended to that area.

In view of the importance of the question involved, in relation to the rights of Advocates who are enrolled as such and who are practising

elsewhere than in, Pondicherry State, we gave notice to the learned Public Prosecutor for Pondicherry, and also the learned Advocate-General,

and we have had the benefit of full arguments upon this question.

Firstly, as to our jurisdiction, we may briefly state that that is not in doubt. Under Sections 9 and 10 of the Pondicherry (Administration) Act

(Act XL1X of 1962), we are clothed with the required revisional jurisdiction, notwithstanding the fact that this is not the High Court of Pondicherry

State; hence, we are competent to entertain this revision proceeding u/s 439 of the Code of Criminal Procedure, which has been extended to the

area, and to deal with the proceeding within the ambit of our powers under the section.

Now, the learned Advocate-General concedes that there is no question of any right vested in the Advocates of this State, as such, to appear

and plead before the Courts in Pondicherry State. Such a right can be derived only under the Indian Bar Councils Act, (XXXVIII of 1926),

Section 14, or, more recently, under the Advocates Act, XXV of 1961, Section 30. Neither of these sections is applicable to the present situation,

since these respective Acts have not so far been extended and made applicable to Pondicherry State. Pondicherry State is in a position sui generis,

in this respect. Since the local laws have been preserved under treaty and special enactments, the laws of Indian Union are being made applicable

there from time to time, by notification, and become effective only upon such notification. Nor is the learned Advocate-General able to trace such a

right, to any fundamental right derived from the Constitution, with regard to the practice of the learned profession of law. The matter has, therefore,

to be decided entirely within the ambit of Section 4(1)(r) of the Code of Criminal Procedure, and the Arrete earlier referred to, and cited in the

order of the Magistrate.

We are very clear that the Arrete referred to is really irrelevant, for the purposes of the exercise of the judicial discretion vested in the Court

tinder Section 4(1)(r), Code of Criminal Procedure, particularly the second clause of that section which authorises the Court to permit any other

person to act in the proceeding. The Arrete has, no doubt, the force of law, and has to be respected within its proper scope. But the Code of

Criminal Procedure having been extended to the territory, the judicial discretion vested in the Court u/s 4(1)(r)(2) , cannot be regarded as

abrogated or affected by the Arrete cited above. Nor can any authority, however highly placed, instruct the Court to observe the Arrete strictly in

such a manner as to negate, or take away, the judicial discretion vested in the Court under the statute (Code of Criminal Procedure), which has

been recently extended to Pondicherry State. We, therefore, desire to make it clear that in a suitable case notwithstanding the terms of the Arrete

and notwithstanding any views as to its rigorous enforcement expressed by any authority in Pondicherry State, however highly placed, the Court

will have unfettered judicial discretion to permit any other person to act for a party, in a proper case, u/s 4(1)(r), Sub-clause (2) of the Code of

Criminal Procedure.

That such a judicial discretion is vested in the Court is very clear from the terms of the Sub-section itself; if authority is really necessary upon this

point, we might refer to the decision in In re W. Calogreedy AIR 1918 Upper Burma 56.

But, having clarified the situation so far, we are unable to see any further room for interference in criminal revision, in the exercise of our powers

of revision, in the present case. The Court has declined to exercise its judicial discretion, to permit the person referred to by the Petitioner to act

for him in the criminal proceeding. This is a matter entirely within the judicial discretion of the Court, to be exercised by it upon a consideration of

all relevant factors, including the extent to which the person for whom permission is sought may be in a special position to help the accused, the

interests of the accused, the language of the Court, and other factors which need not be particularised here. We cannot issue any further

instructions in this matter, beyond clarifying the general situation, and making it clear beyond doubt that the judicial discretion is vested in the Court,

and is not to be exercised on the dictation of some other-authority nor is it affected by any other law, such as the Arrete cited. With-these

observations, the revision proceeding is dismissed.