Subda Santal and Another vs Emperor

Kulwant Sahay, J.—Mr. S.M. Gupta, an advocate of this Court, presented an application for revision on behalf of Subda Santal and another, under the provisions of Sections 435 and 439 of the Criminal Procedure Code. The application was admitted and notice was ordered to issue. Mr. Gupta was thereupon asked by the office to supply an authority on behalf of the petitioners duly stamped. He objected on the ground that in criminal cases no authority in writing was necessary. The Registrar has preferred the matter to us and the question for decision is whether a duly stamped appointment in writing is necessary to be filed by an advocate or a vakil of this Court appearing on behalf of accused persons in criminal cases.

As the matter was of importance we thought it necessary to issue notice to the Government Advocate; and we have heard the Government Advocate as well as Mr. Gupta. Mr. Gupta contends that no authority in writing is necessary for an advocate or a vakil in criminal cases, and the Government Advocate supports him.

The office has drawn our attention to the rules of this Court. Rule 24 of Chapter XII of the High Court Rules provides that

a criminal appeal which is to be presented to the Court shall in the first instance be given to the trial clerk, who shall note on it whether it is properly stamped, is within time and is admissible, and shall return it at once.

Rule 1 of Chapter XII prescribes that the rules in Chapter III shall apply as far as possible to applications made under Chapter XII which deals with the procedure in criminal cases. Rule 4(iv) of Chapter III provides that every petition shall be

presented either by the petitioner or his declarant or his recognized agent or his pleader or some person appointed in writing in each case by such pleader to present the same

and the note attached to this rule says that "pleader" means advocate, vakil or attorney. These rules do not prescribe that in criminal cases an authority in writing has to be filed by an advocate or vakil when presenting a criminal appeal or application.

Rule 5A of Chapter XVII of the High Court Rules prescribes that

notwithstanding anything contained in Order 3, Rule 4(3) of the First Schedule of the Code of Civil Procedure, 1908, no advocate shall be entitled to make or do any appearance, application or act for any person unless he presents an appointment in writing, duly signed by such person or his recognized agent or by some other agent duly authorized by power of attorney to act in this behalf; or unless he is instructed by an attorney or pleader duly authorized to act on behalf of such person.

This rule refers to civil cases governed by the CPC and has no reference to criminal cases. There is, therefore, nothing in the High Court Rules requiring an advocate or a vakil to file an appointment in writing when presenting a criminal appeal or application.

Section 340 of the Criminal Procedure Code 1898 provides that

any person accused of an offence before a criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.

The word "pleader" is defined in Section 4(r) of the Code, when used with reference to any proceeding in any Court, to mean

a pleader or a mukhtear authorized under any law for the time being in force to practise in such Court, and includes (1) an advocate, a vakil and an attorney of a High Court so authorized; and (2) any mukhtear or other person appointed with the permission of the Court to act in such proceeding

Section 419 of the Code prescribes that

every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader.

The Criminal Procedure Code, unlike the Civil Procedure Code, nowhere prescribes the mode of appointment of pleaders; and I find no authority for the proposition that in criminal cases a pleader must file an authority from his client in order to enable him to present an application or appeal on behalf of his client, and to act for him in criminal cases.

Article 10 of Schedule II to the Indian Court Fees Act prescribes a fee for mukhtarnamas and vakalatnamas when presented for the conduct of any case to any civil or criminal Court including a High Court. This merely means that when an authority is filed, such authority must be stamped. It does not make it necessary that a vakalatnama or mukhtarnama must be filed in criminal cases.

When we examine the older enactments relating to procedure in criminal cases, we find it provided that persons accused of criminal offences are entitled as of right to be defended by pleaders. Act XXXVIII of 1850, which was known as the Moffussil Prisoners'' Counsel Act, provided that in all Courts and before all Magistrates, every person on trial for commission of any offence shall be admitted to defend himself either personally or by his authorized agent and it provided that

in those Courts in which any person now has by law the right of employing whomsoever he can employ as counsel or pleader nothing in this Act shall be deemed to restrict that right; in all other cases those persons only shall be deemed authorized agents within the meaning of this Act who are either Advocates of one of the Supreme Courts of justice established by Royal Charter, or authorized pleaders of the civil Courts of the East India Company, or, by leave of the Court, Magistrate or other person before whom the prisoner is on trial, any other person who is employed by the prosecutor or prisoner as his agent.

This Act does not prescribe the mode of appointment of authorized agents, and it enacted that advocates of the Supreme Court and authorized pleaders of civil Courts were deemed to be authorized agents of an accused person.

In the Code of Criminal Procedure (Act XXV of 1861) no provision was made as to the mode of appointment of pleaders, although Section 432 of the Act provided that

Every person charged before any criminal Court with an offence may of right be defended by counsel or authorized agent.

Act XXXVIII of 1850 was repealed by Act XVII of 1862 in places where the Criminal Procedure Code was brought in force, but it did not in any way affect the right of an accused person to employ a pleader, and no provision was made for the mode of appointment of such a pleader.

Act VIII of 1869, which was the Code of Criminal Procedure Amendment Act. gave the same right to persons charged with an offence before any criminal Court to be defended by any barrister or attorney of a High Court, or by any pleader duly qualified under the provisions of Act XX of 1865, or any other law in force for the time being relating to pleaders. Section 11 of Act XX of 1865 authorized pleaders to practise in criminal Courts. Here also the mode of appointment was not prescribed.

Act X of 1872, which was an act for regulating the procedure of the Courts of Criminal Judicature provided in Section 186 that

Every person accused in any criminal Court of an offence may of right be defended by any barrister or attorney of a High Court, or by any pleader duly qualified under the provisions of Act XX of 1865, or any other law in force for the time being relating to pleaders.

The question was raised in the Madras High Court, as to whether an advocate or attorney of the High Court or an authorized pleader appearing in defence of an accused person u/s 186 of the Act of 1872 was required to file a vakalatnama, and the High Court ruled that no vakalatnama was in such a case required: vide VII, Madras High Court Reports, Appendix XL.

We have referred to the provisions of the present Code of Criminal Procedure relating to the right of an accused person to be defended by a pleader; and we find that from the earliest times the Legislature has refrained from making any provision prescribing the mode of appointment of a pleader to act for a person accused of an offence in criminal Courts. The Legislature did think it fit to make such provisions for appointment of pleaders in civil cases, but refrained from making any such provision as regards criminal cases.

I, therefore, find no provision either in the Criminal Procedure Code or in the rules of the High Court requiring an advocate or vakil of this Court to file a duly stamped appointment in writing in criminal cases. It has been the invariable practice in this Court to allow advocates to appear and act for accused persons in criminal cases without any authority in writing. The new Rule 5-A of Ch. XVII of the High Court Rules makes it obligatory for an advocate of this Court to file an appointment in writing in civil cases; but it did not in any way interfere with the practice in criminal cases. It may be observed that in some criminal cases, such as capital sentence cases, the Crown appoints a pleader to represent a person accused of an offence, and in those cases clearly no appointment in writing from the accused person is required. I am of opinion that it will unduly restrict the right of an accused person to be defended by a pleader in a criminal case if he is required to file a stamped authority enabling the pleader to defend him.

I, therefore, am of opinion that no appointment in writing is necessary in order to entitle an advocate or a vakil to act for an accused person in criminal cases; and that no appointment in writing was necessary to be filed in the present case.

Ross, J.

I agree.

This is an application in revision against an order passed u/s 145 of the Code of Criminal Procedure. Section 340 of the Code provides that any person accused of an offence before a criminal Court, or against whom proceedings are instituted under this Code in such Court, may of right be defended by a pleader; and it makes no difference to the present question whether the petitioner is a person accused of an offence or a person against whom proceedings have been taken u/s 145 of the Code of Criminal Procedure. There is nothing in that Code which requires any written authority to defend an accused person; and it differs in this respect from the Code of Civil Procedure. Whereas the former Code entitles an accused person to be defended of right by a pleader, without more, Order 3, Rule 1 of the latter Code enacts that any appearance, application, or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent (defined in Rule 2) or by a pleader duly appointed to act on his behalf. While, therefore, an accused person can either defend himself or be defended by a pleader, a party to a civil suit can appear either in person or by a recognized agent or by a pleader duly appointed to act on his behalf. The present question has arisen out of Rule 5(a) which has been recently added to Ch. XVII of the Rules of the High Court. Now, while it may be argued that although that rule refers to Order 3, Rule 4 Clause (3) of the Civil P.C., yet that reference does not limit its application to civil proceedings and the rule, in terms is of general application, still, I think that when the language of the rule is considered, it must be held to have been framed with reference to Order 3 of the Code of Civil Procedure. The language closely follows that of Order 3, Rule 1, and the object of the rule apparently was to abolish the special privilege conferred on advocates by Rule 4 of that order. I therefore do not think that the rule should be construed in a general sense or as intended to affect or alter the criminal practice in this Court.