1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5561 OF 2009 Ashok Chaturvedi .. Application V.s State of Maharashtra & ors. .. Respondents Mr. Milan Desai i/b Prashant Parshurampuria for the applicant. Respondent no.2 present in Court. Mr. S.N. Gawade, A.P.P. for the State. CORAM: D.G. KARNIK, JJ. DATE : 16TH DECEMBER 2009 ORAL ORDER: 1. By this application, the applicant challenges the order dated 19th November 2009 passed by the learned Additional Sessions Judge, Greater Bombay rejecting the applicant’s application dated 21st October 2009. 2. The applicant filed a revision application, bearing C.R.A. No. 1232 of 2009, before the Sessions Court challenging two orders dated 5th August 2009 passed by the learned Metropolitan Magistrate, 44th Court, Andheri. At the hearing of the revision the respondent no.2, who is an aged lady of 69 years, appeared in person. She was assisted by her husband, who also held 2 her power of attorney. She appears to have requested the Sessions Court to allow her husband to address the court on her behalf. The applicant opposed the request and made a written application to the Sessions Court that the husband of the respondent no.2 may not be permitted to make submissions on her behalf, on the basis of the power of attorney. The application was rejected by the Sessions Court by its order dated 19th November 2009. That order is impugned in this petition. 3. Relying upon a decision of the Supreme Court in T.C. Mathai v. District & Sessions Judge, Thiruvananthapuram, AIR 1999 SC 1385, learned counsel for the applicant submitted that the respondent no.2 could not be allowed to be represented by a power of attorney. In the case of T.C. Mathai (supra), the Supreme Court has held that a power of attorney is not a pleader and section 2 of the Power of Attorneys Act cannot override the specific provision of the Advocates Act which prohibits a person other than an Advocate to appear for a party. There can be no dispute about this proposition. But what we have to see in this case is whether the husband of respondent no.2, who is seeking permission of the court to address on her behalf, was acting as an Advocate. The question before me is: Whether a close relative or a friend who appears for a party in person as his power of attorney cannot be allowed to do so? That is no more res integra and has been considered by the Supreme Court earlier in its decision in Harishankar Rastogi v. Girdhari 3 Sharma, AIR 1978 SC 1019. In para 4 of that judgment, the Supreme Court has observed:- “4. Having regard to this conspectus of considerations I hold that a private person who is not an advocate, has no right to barge into Court and claim to argue for a party. He must get the prior permission of the Court, for which the motion must come from the party himself. It is open to the Court to grant or withhold permission in its discretion. In fact, the Court may even after grant of permission, withdraw it half- way through if the representative proves himself reprehensible. The antecedents, the relationship, the reasons for requisitioning the services of the private person and a variety of other circumstances must be gathered before grant or refusal of permission. In the present case, I have noticed the petitioner and his friend who is to represent him, come together with mutual confidence. The party somehow has not shown sufficient confidence in advocates he has come by. This bodes ill for him. I should have suspected the association of the private person as having sinister implications of exploitation of a guideless party but suspicion by itself should not be the basis of a conclusion. Therefore, I think it right to 4 give the party, who appears to be unable to represent his own case, an opportunity to present his grievance through his friend. That friend, judging by the note prepared and put in seems to be familiar with law, although quacks can prove fatal friends. I grant the petitioner permission to be represented by a private person as prayed for, with the condition that if this latter proves unworthy, the permission will be withdrawn.” (underlining supplied) 4. In the present case, it may be noted that the respondent no.2 is an elderly lady of 69 years. She is present before me along with her husband. She states that she has recently been operated for cataract and cannot see properly. She has not engaged a third party as a power of attorney, but has given power of attorney to her own husband who accompanies and helps her. She has full faith and trust in him. Considering the frail health of the respondent no.2, I am satisfied that she would not be in a position to property address the Court and put forward her case. She is not claiming total exemption from appearing in the court. She has been attending the court but only requesting for permitting her husband, whom she has authorised, to address the Court on her behalf. 5. I see no reason to interfere with the view taken by the Sessions Court 5 in permitting the husband of respondent no.2 to address the court on her behalf. There is no merit in the application which is hereby dismissed summarily. (D.G. KARNIK, J.)