1 CAW.147/2010 A/W. CAW.125/2008-WP.1468/2003 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.84 OF 2008 ALONGWITH CRIMINAL APPLICATION NO.147 OF 2010 ALONGWITH CRIMINAL APPLICATION NO.125 OF 2008 IN CRIMINAL WRIT PETITION NO.1468 OF 2003 ALONG WITH NOTICE OF MOTION NO.57 OF 2010 IN MISCELLANEOUS PETITION (LODG) NO.306 OF 2010 IN TESTAMENTARY PETITION NO.237 OF 2009 Mrs. Veena Jaswant Shah & Ors. ...Petitioners/Applicants Vs. Mr. Rajendra Vinayak Mehta & Anr. ...Respondents Mr. D.D. Madon, Sr. Counsel with Mr. S.A. Sawant for Petitioners Ms. Smita Patel, the C.A of Applicant/Respondent No.1 in Writ Petition in C.A. No.147/2010 and C.A. No.125/2008. CORAM : SMT. ROSHAN DALVI, J. DATED : 2ND SEPTEMBER, 2010 P.C. : 1. Under this order the issue with regard to the appearance of the Constituted Attorney (C.A.) of the Petitioners to plead the case of the Petitioners is to be considered. The Petitioners are brothers. The wife of one of them is stated to be the cousin of the C.A of both of them. The C.A claims to know 2 CAW.147/2010 A/W. CAW.125/2008-WP.1468/2003 the family in such capacity for the last 20 years and claims to have the confidence of the Petitioners. The Petitioners are settled in the USA and are stated to have executed separate powers of attorney in favour of their C.A who seeks to plead on behalf of them before the Court. Her appearance is strenuously objected on behalf of the Respondents as lacking in the qualifications as well as the requisites of an Attorney seeking to appear and plead in Court on behalf of an absent party. 2. It may be mentioned that the representation by the C.A is sought in the Criminal Writ Petition as well as in Misc. (Testamentary) Petition, both of which, have been directed to be heard together, since they relate to the same property between the same parties albeit under two separate applications, one civil and one criminal. 3. The law relating to the requisites of an attorney of a party who is not a qualified lawyer, but who seeks to protect the interest of the party and various judgments in that behalf since the last ½ century are required to be noted and followed. 4. The appearance of recognised Agents and Pleaders on behalf of the parties to the civil proceedings under the C.P.C is to be made under the provisions contained in Order 3 Rule 1 of the C.P.C which runs thus:- “ORDER III RECOGNISED AGENTS AND PLEADERS 1. Appearances, etc., may be in person, by recognised agent or by pleader – Any appearance, application or act in order to any Court, 3 CAW.147/2010 A/W. CAW.125/2008-WP.1468/2003 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 recognised agent, or by a pleader [appearing, applying or acting, as the case may be] on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person.” 5. The appearance of a Pleader on behalf of the parties in a criminal proceeding under the Cr.P.C is to be by the person defined as Pleader under Section 2(q) of the Cr. P. C which runs thus:- 2(q) “Pleader”, when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force to practise in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding; 6. The appearance of recognized Pleaders and Agents of the parties are regulated by law in that behalf. That law is contained in Sections 33 and 32 of the Advocates Act 1961, which runs thus:- 33. Advocates alone entitled to practise – Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any Court or before any authority or person unless he is enrolled as an advocate under this Act. 32. Power of Court to permit appearances in particular cases – Notwithstanding anything contained in this Chapter, any Court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.” (underlinings supplied) 4 CAW.147/2010 A/W. CAW.125/2008-WP.1468/2003 7. A reading of the aforesaid provisions show that the litigant has a choice to appear himself or herself of through any person of his confidence whom he may appoint to so appear and plead on his behalf provided however, essentially that that person is qualified to appear. It need hardly be stated that in each profession qualifications of persons who pursue such profession by way of their career are laid down. For the appearance in Court the qualifications are laid down under the Advocates Act, 1961 and the rules made by the relevant Bar Councils for qualifications of persons seeking to appear in Courts to practise thereat. The recognised Agents of the parties are, therefore, essentially qualified Lawyers. The qualification essentially requires and includes the academic qualifications to be obtained as also further rules that are required to be complied. These qualified Agents appear upon being appointed by the parties and are paid for by them. For those parties who cannot pay for such recognized Agents to appear and plead for them in Courts Legal Aid is provided essentially under Section 304 of the Cr.P.C., but which does not come up for consideration in this case and which need not be reproduced. 8. Aside from the above, the Agent of the party may by any other person authorised to appear by the party to a proceeding who may be permitted to so appear by the Court. Such appearance would, therefore, be upon the discretion exercised by the Court in a given case for a given party to allow him to be represented by an Agent who is otherwise not a recognised Agent or Pleader. The aforesaid provisions of law came to be considered in various judgments. 5 CAW.147/2010 A/W. CAW.125/2008-WP.1468/2003 9. In the earliest case, which dealt with the appearance of a Constituted Attorney of a party to appear and plead on behalf of the party as his recognised Agent came to be considered in the case of Aswin Shambjuprasad Patel Vs. National Rayon Corporation Ltd. A.I.R. 1955 Bombay 262 by Justice Chagla as he then was. The ambit of Order 3 Rule 1 of the C.P.C read with Clause 10 of the Letters Patent Section 8 of the Bar Councils Act and Section 9 of the Bombay Pleaders Act was considered. It is held that the right of audience which is a natural and necessary concomminent of the right to plead is absent, if the person seeking to plead is not a recognised Agent as he has no right to plead and consequently no right of audience in Court. Of course the said judgment would stand amended and diluted by the aforesaid provisions in the Advocates Act 1961 which came into being after the said judgment was rendered. 10.In the later judgment in the case of Harishankar Rastogi Vs. Girdhari Sharma AIR 1978 S.C. 1019 Justice V.R. Krishna Iyer considered the aforesaid provisions of the aforesaid Act alongside Section 2(q) of the Cr.P.C. That was a criminal proceeding. A party sought to be represented by a private person who was not his Advocate and sought permission of the Court in that behalf. It was observed that the Advocates are as of right entitled to practise in the Court. Considering the fundamental right of any citizen to carry on any profession with reasonable restrictions upon such right, the State would make law as to which class of persons were entitled to practise the profession of law as Advocate. Thus, it was held that certain 6 CAW.147/2010 A/W. CAW.125/2008-WP.1468/2003 parties can seek the help of other persons in that behalf for justice to be done to them. At the time when the judgment came to be rendered the legal aid rules required to be framed under Section 304 were not framed or in their infancy. Under those circumstances and in those times it was observed that the Court should not “totally shut out representation by a person other than a party himself” when the Advocate was not appearing. It was observed that a comprehensive programme of free legal services was an obligation of the State which was until then not fully worked out. Rules have been framed under Section 304 of the Cr.P.C since. All the accused in every criminal trial are entitled to be provided a Lawyer by the State, if they chose not to have their own. No criminal case is allowed to go on without the accused being represented by a Lawyer. The judgment in the case of Rastogi (supra) making observations about the representation by the “some chosen friend” of the party is the observation made “until then” implying that it would prevail until such rules are framed, which are framed by now. 11.The judgment however also lays down that such other person cannot practise the profession of habitually representing parties in court. 12.Consequently in a particular instance or case a person can be represented by a non-advocate. That may be in “one case” or “on a few occasions” or “in few cases”. 13.The Court put a further rider upon such limited allowance made to parties who chose some other person to represent them. The Court observed that 7 CAW.147/2010 A/W. CAW.125/2008-WP.1468/2003 it would be made for “regulating audience before it” and consequently it was observed that the Court must exercise “its wise discretion”. The wisdom of that discretion, it has been laid down, is guided by a plurality of considerations. 14.A person representing the party must not have poor antecedents or irresponsible behaviour or dubious character, which would result in counter-productive service. Some such private persons may be obstructive or destructive of justice. A private person who is not an Advocate has no right to barge into a Court and claim to argue for the party. He must obtain prior permission and it is open to the Court to grant or withhold the permission in its discretion; the Court may grant it and then may withdraw it half-way through also. It is further observed that if these riders are not followed justice may fail, Judges may suffer and the party himself may suffer. 15.Consequently, the mandate under the said judgment is that the party may be represented by another lay person to do justice to the party in pleading on behalf of that party by a person who is both sound and congenial and who would render yeoman service to the absent party. 16.In that case the learned Judge saw that the parties had mutual confidence in one another, which the party before the Court did not have in any of his Advocates. The learned Judge also saw that the party in that case was unable to represent his own case and required an opportunity to present his grievance through his friend. A conditional allowance was made 8 CAW.147/2010 A/W. CAW.125/2008-WP.1468/2003 allowing the chosen person of the party who appeared upon the mandate that the allowance would be withdrawn, if the party proved unworthy. 17.This judgment with all its circumspection must be followed, as contended by the Constituted Attorney of the Respondents in the above Petition. 18.The Constituted Attorney has relied upon further judgments, some of which are relevant to consider. In the case of Anant Chimanlal Bhatt Vs. Municipal Corporation of Greater Bombay decided on 26th February 2010 (Coram: F.I. Rebello & A.R. Joshi, JJ) the son of the Petitioner sought to appear and was allowed to appear by the Division Bench of this Court. The Court, exercised its discretion to allow him to appear upon being assured with the relative of the Petitioner appearing on behalf of the Petitioner was conversant with law, facts and in position to assist the Court and consequently, inspired confidence in the Court in his ability to address on the issues which arose in the matter. The Court saw the research done by such person and was satisfied that he was in a position to assist the Court, after which he was permitted to address the Court. 19.The case of Surender Raj Jaiswal Vs. Smt. Vijaya Jaiswal AIR 2003 AP 317 also relied upon by the Constituted Attorney of the Respondents, shows the distinction between the right to practise and right of appearance in a particular case. It has held that Section 32 of the Advocates Act is an exception to the right to appear (which is under Sections 33 of the said Act). Upon considering the case of Rastogi (supra) as well as the powers of the Court under Section 151 of the C.P.C the husband of the Respondent in 9 CAW.147/2010 A/W. CAW.125/2008-WP.1468/2003 that case appointed as her Constituted Attorney was allowed to appear and “help” the Court. It may be mentioned that the aforesaid case amply shows the ambit of the Court’s consideration in allowing a lay person to appear on behalf of the parties. 20.The reliance upon other decisions by the Constituted Attorney are misplaced. 21.In the case of Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. AIR 2005 SC 439 and in the case of Parvez Khan Vs. State of Rajasthan 1986(2) WLN 713 the Court was called upon to consider the right of the Constituted Attorney to give evidence on behalf of the party and are not required to be considered in this case. Similary the case of Bharatiya Bhavan Co-op. Hsng. Society Ltd. Vs. Krishna H. Bajaj 2004(2) Mh. L.J. 810 is the case in a Co-operative Court and, therefore, wholly inapplicable as in that Court Lawyers are by statute neither allowed nor entitled to practise except with the permission of the Court. The Constituted Attorney in this case has undertaken an academic discourse in the powers and duties of the Court to follow precedents as well as in interpretation of statutes which need not be adverted to. The Constituted Attorney has also relied upon various orders passed in this proceeding itself which do not deal with the question of law required to be considered. 22.This, therefore, leaves for the consideration of this Court the personality of the Constituted Attorney in this case itself. The proceedings are replete with certain applications and petitions by both the Respondents as well as 10 CAW.147/2010 A/W. CAW.125/2008-WP.1468/2003 the Constituted Attorney of the Respondents written to authorities including the Chief Justice of this Court, the Prime Minister, the Law Minister etc. Allegations as well as extraneous matters are seen contained in such otherwise needless applications and representations. The Constituted Attorney has herself been a seasoned litigant. 23.Mr. Madon, Sr. Counsel on behalf of the Respondents drew my attention to the judgment of the Supreme Court in the case of Vipin Pandya Vs. Smita Ambalal Patel (2007) 6 S.C.C. 750 showing strictures passed against the Constituted Attorney and exemplary costs of Rs. 5 lakhs imposed upon her not upon the demerits of her case, but upon her conduct of the proceedings. It would do well to reproduce the observations of the Court with regard to the impeccability or otherwise of her behaviour, which runs thus: 21. It is indeed disgusting to see a litigant attempting to intimidate the Supreme Court and two of its Judges in such a crude and obnoxious manner. 22. A resume of the facts clearly reveals the incorrigible and recalcitrant attitude of the respondent. We could perhaps condone her errant conduct if she was merely a highly strung and impetuous lady oversensitive to her case and unaware of the nuances of the law and the decorum to be maintained in court but we are satisfied that no ignorance nor mental imbalance is discernible which can be pleaded in extenuation of her behaviour. The record reveals that she is well aware of the conduct of the judicial process and the law and facts relating to her case, but she has evolved a strategy which has thus far kept her in good stead as it has been designed to filibuster the proceedings in case she finds that they are not taking the 11 CAW.147/2010 A/W. CAW.125/2008-WP.1468/2003 direction that she has chalked out and that despite her conviction for contempt of court on two occasions and numerous admonitions and warnings notwithstanding, she has remained unfazed and has in a most unbecoming manner relentlessly and ruthlessly pursued the litigation. We also quote yet again from the judgment of the Division bench dated 16-11-2000: “It may also be possible that she has lost her mental balance because of the said facts. (Though, considering the manner in which the contemner coolly argued the appeal before us, we are not inclined to believe that she has really lost her mental balance)” We completely endorse this observation.” Mr. Madon also drew my attention to the order of the Co-operative Court at Bombay in Misc. Application No.222/2009 in Dispute No.12/2007 between the Respondents and the Secretary of the Society which was a party to that dispute showing how the fracas ensued resulting in the arrest of the Constituted Attorney of the Respondents to bring peace in the Court room. 24.Mr. Madon urged that a person of such antecedents and of such reprehensible behaviour should not be allowed to plead on behalf of another. It may be mentioned that the Court is interested only in seeing the merits of the case of the parties. Such merits are to be brought on record simiplicitor as they are, shorn of needless precedents wholly inapplicable to the case. The Constituted Attorney’s representation in this very application runs contrary to that wholesome and chaste rule of conduct. The arguments made by her on her own behalf in this very application seeking permission to appear show irrelevant judgments cited 12 CAW.147/2010 A/W. CAW.125/2008-WP.1468/2003 for elementary propositions of law which do not come up for consideration. See in the case of S.I. Rooplal Vs. Lt. Governor through Chief Secretary Delhi AIR 2000 SC 594, Director of Settlement, A.P. Vs. M.R. Apparao & Anr. (2002) 4 SCC 638 and State of Punjab Vs. Bhag Singh (2004) 1 SCC 547 which are themselves a pointer to the inability of the Constituted Attorney to represent the case of the party in its reality as it should be. This Court would, therefore, do well in not exercising the discretion in favour of the Constituted Attorney of the Respondents to represent them as their Pleader and to seek the right of audience. 25.Besides the Constituted Attorney of the Respondent herself stated to Court on more occasions than one during the arguments that the Respondents, though settled in the USA, would come to this Court immediately as called upon. The appearance itself would ipso facto constitute the termination of the Power of Attorney. 26.Consequently all the above applications are rejected. (SMT. ROSHAN DALVI, J.)