Naveed Akthar Sait v. State of Kerala and Manishi Thapper

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 26TH DAY OF MAY 2016/5TH JYAISHTA, 1938** **Crl.MC.No. 3488 of 2013 () ---------------------------** **( CC 152/2012 of C.J.M.,THRISSUR )** **PETITIONER:** **-------------** **NAVEED AKTHAR SAIT REPRESENTED BY HIS FATHER AND POWER OF ATTORNEY HOLDER MR.A.AKTHAR SAIT, AGED 62, S/O.ABDUL KADER SAIT, RESIDING AT FLAT NO.202, MAHAVIR TOWER, LBS (MARG), MUMBAI - 400 080.** **BY ADVS.SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.V.S.SHIRAZ BAVA** **RESPONDENTS --------------------------** **1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 682031** **2. MANISHI THAPPER, AGED 36 NO.60, VILLA HEIGHTS, SKYLINE APARTMENTS, GOSAYIKUNNU, KURIYICHIRA, THRISSUR.675011** **BY PUBLIC PROSECUTOR SMT.V.H.JASMINE** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 3488 of 2013 () ---------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **-----------------------** **ANNX.A1 - TRUE COPY OF THE POWER OF ATTORNEY DATED 9-1-2013 EXECUTED IN FAVOUR OF MR.AKTHAR SAIT.** **ANNX.A2 - TRUE COPY OF THE CRL.MP 7658/09 ON THE FILE OF CHIEF JUDICIAL MAGISTRATE, THRISSUR.** **ANNX.A3 - TRUE COPY OF THE CHEQUE BEARING NO.102913 DATED 8-10-2009 FOR AN AMOUNT OF RS.11,000,00/-** **ANNX.A3(A) - TRUE COPY OF THE RETURN MEMO BEFORE THE UNION BANK OF INDIA.** **ANNX.A3(B) - TRUE COPY OF THE RETURN MEMO BEFORE THE AXIS BANK.** **ANNX.A4 - TRUE COPY OF THE CHEQUES BEARING NO.102925 DATED 10-10-09 FOR AN AMOUNT OF RS.10,00,000/-** **ANNX.A4(A) - TRUE COPY OF THE RETURN MEMO BEFORE THE UNION BANK OF INDIA.** **ANNX.A4(B) - TRUE COPY OF THE RETURN MEMO BEFORE THE AXIS BANK.** **ANNX.A5 - TRUE COPY OF THE FINAL REPORT DATED 31-12-2009 FORWARDED TO THE CHIEF JUDICIAL MAGISTRATE THRISSUR.** **ANNX.A6 - TRUE COPY OF THE PROTEST COMPLAINT DATED 1-2-2010 BEFORE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR.** **ANNX.A7 - TRUE COPY OF THE PROCEEDINGS DATED 20-7-2012 IN C.C.152/12 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR.** **/TRUE COPY/** **PS TO JUDGE** ## **K.P.JYOTHINDRANATH, J.** - - - - - - - - - - - - - - - - - - - - - **Crl.M.C.No.3488 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of May, 2016 ## **ORDER** This is a petition filed under Section 482 of Cr.P.C. to quash the proceedings in C.C.No.152/2012 on the file of the Chief Judicial Magistrate Court, Thrissur. The facts relevant for consideration in this case is as follows : Naveed Akthar Sait is the accused in C.C.No.152/2012 on the file of the Chief Judicial Magistrate Court, Thrissur. It is a protest complaint filed by one Manishi Thapper of Thrissur. The allegation is that the accused committed offence under Section 420 of IPC. Originally, the complaint filed by the complainant before the court was forwarded under Section 156(3) of Cr.P.C. to the Police. Police registered a crime and a refer report was filed. Aggrieved by the same, a protest complaint was filed and the court below took cognizance for an offence under Section 420 of IPC. The accused filed the above Crl.M.C.No.3488/2013 2 referred criminal miscellaneous case before this Court through his power of attorney holder, Akthar Sait. 2. The first point to be considered is whether the power of attorney holder can file a petition like this before this Court to quash a criminal proceedings before the lower court. 3. The learned counsel for the petitioner submitted before me that it being only a technical in nature, surely this court can use the inherent power vested upon this Court. 4. The question is regarding the maintainability of the petition itself, which is initiated by the power of attorney holder. 5. In this case, the petitioner produced the power of attorney given by the accused to the petitioner herein. Copy of the power of attorney is produced before this Court and marked it as Ext.A1. It can be seen that it was executed before the Consulate General of India, Dubai . The said power of attorney is a general power of attorney. Paragraphs 6, 7, 8 and 9 are as follows : “ 6. To appear before all courts, civil, criminal or revenue, original or appellate in the registration Crl.M.C.No.3488/2013 3 office and in any other office and to sign, verify and file plaints, written statements, executions and petitions, also to sign file and present appeals in any court or offices on may behalf, 7. To appoint and constitute on my behalf pleaders vakils, or advocates or other attorneys whenever necessary and to relinquish their service as and when my attorney thinks fit. 8. To compromise, compound or withdraw or refer any matter or case to arbitration and to sign, verify and file application for execution of decrees or orders of any Court or to pay fine, cost pertaining to the cases and the judgments thereon. 9. To withdraw and receive documents or money from any court, office or opposite party whether in execution of decrees or otherwise and to do all acts that may be necessary in connection with any of such cases.” Crl.M.C.No.3488/2013 4 5. Thus, what comes out is that as per the said power of attorney a petition is filed before this court on behalf of the original accused in the case referred above. The decision in **M.Krishnammal v. T.Balasubramania Pillai ( AIR 1937 Mad 937)** , which was decided by the Madras High Court, that also about 70 years back is the land mark decision in this regard. As per the said decision, the legal position regarding the power that can be delegated even in a case is dealt with. The court held : “ An agent with a power of attorney to appear and conduct judicial proceedings, but who has not been so authorised by the High Court, has no right of audience on behalf of the principal, either in the appellate or original side of the High Court --- There is no warrant whatever for putting a power of attorney given to a recognized agent to conduct proceedings in court in the same category as a vakalat given to a legal practitioner, though latter may be described as a power of attorney is confined only to pleaders, i.e., those who have a right o Crl.M.C.No.3488/2013 5 plead in courts.” 6. The dictum laid down therein is that without the explicit permission of the court, a power of attorney cannot plead or can have audience in the court. This position is followed in **T.C.Mathai v.** **District & Sessions Judge, Thiruvananthapuram [(1999) 3 SCC** **614]** , wherein the Apex Court approving the dictum laid in the above referred case, held that : “ The aforesaid observations, though stated sixty years ago, would represent the correct legal position even now. Be that as it may, an agent cannot become a “ pleader” for the party in criminal proceedings, unless the party secures permission from the court to appoint him to act in such proceedings. The respondent-couple have not even moved for such a permission and hence no occasion has arisen so far to consider that aspect.” 7. In the case in hand, it is the admitted case of the petitioner that he is the power of attorney holder and moved on behalf of the accused. There is no petition for permission to act on behalf of the Crl.M.C.No.3488/2013 6 principal. An agent cannot appoint an Advocate who is empowered to appear before the court without the permission of the court. When the power of attorney holder has not permitted to do so, he cannot cure the defect by appointing an advocate by him. Thus, what comes out is that, in this case, the petitioner has not obtained permission from the court to proceed with the proceeding. Under such circumstances, this petition fails and the same is accordingly dismissed. It is made clear that the dismissal of the petition will not affect in any way the right of the original accused to approach this Court, if so he desires. ## **K.P.JYOTHINDRANATH** ## sv.