In Re: Ramasrinivasan

Anantanarayanan, J.—This is a proceeding in criminal revision by the petitioner (Ramasrinivasan) who prayed the First Class Magistrate, Karikal (Pondicherry State) under S. 4(I)(r)(2) Crl. P.C. 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 above 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 Judicial Department, Pondicherry, and 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 under S. 4(I)(r) of the Criminal Procedure Code, which has been recently intended 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 Ss. 9 and 10 of the Pondicherry (Administration) Act (Act No. 49 of 1962) we are clothed with the required revisional jurisdiction, notwithstanding the fact that this is act the High Court of Pondicherry State; hence, we are competent to entertain this revision proceeding under S. 439 Crl. P.C., 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, S. 14 or more recently, under the Advocates Act, No. XXV of 1961, S. 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 S. 4(1)(r) of the Criminal Procedure Code, 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 under S. 4(1)(r) Crl. P. C. 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 Criminal Procedure Code Slaving been extended to the territory, the Judicial discretion vested in the Court under 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 manner as to negate, or take away, the judicial discretion vested in the Court under the statute (Crl. P.C.) 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, under S. 4 (1) (r) sub-clause (2) Criminal Procedure Code.

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. Galogreedy AIR 1918 U B 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.