Paul Varghese v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 20[TH] DAY OF OCTOBER 2021 / 28TH ASWINA, 1943** **CRL.MC NO. 3788 OF 2021** **CRL. M. P. NO. 642/2021 IN S.T. NO. 3557/2016 OF JUDICIAL FIRST CLASS MAGISTRATE - I, NORTH PARAVUR, ERNAKULAM** **PETITIONER/ACCUSED:** **PAUL VARGHESE AGED 28 YEARS S/O. VARGHESE, AIROOKKARAN HOUSE, NEAR MANJALI BRIDGE, NORTH PARAVUR.** **BY ADV. M.VIVEK** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. RENJITH T.R., SENIOR PUBLIC PROSECUTOR** ## **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **13.09.2021, THE COURT ON 20.10.2021 PASSED THE FOLLOWING:** Crl.M.C.No.3788 OF 2021 2 ## **ORDER** Can a Magistrate who had issued summons in a proceedings before him is justified to insist filing of vakalath by the accused, is the short question posed for consideration in this Crl.M.C. Petitioner is the accused in S.T. No. 3557/2016 pending before the Judicial First Class Magistrate – I, North Paravur. He faces allegations under Sections 279 of the Indian Penal Code and Section 185 of the Motor Vehicles Act. The allegation is that on 12.10.2016, at 5.45 P.M., the Sub Inspector of police, North Paravur police station found the petitioner riding a motor cycle bearing registration No. KL-07-AC-1437 in a rash and negligent manner under the influence of alcohol. He was intercepted, subjected to breath analyzer test and found having drunk and thus after registering the crime, he was released on bail. Thereafter, summons was issued by the learned Magistrate pursuant to which a counsel entered appearance and filed a memo of appearance. Through the counsel the petitioner wanted to plead guilty. But by the impugned Annexure 2 order dated 08.07.2021, the learned Crl.M.C.No.3788 OF 2021 3 Magistrate dismissed the application, for the simple reason that no vakalath is filed, that instead of filing vakalath, a memo of appearance alone was filed; on that ground the application was dismissed. The correctness of this finding is challenged in this Crl.M.C. filed under Section 482 of the Code of Criminal Procedure. 2. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor. 3. The learned counsel has submitted that he is entitled to plead guilty by filing a memo of appearance as provided under Rule 31 of the Criminal Rules of Practice, that the learned Magistrate cannot insist him to file a vakalath, that there is no specific provision directing to file vakalath and therefore, Annexure 2 order is illegal. 4. There are two aspects in this case. Firstly, whether the Magistrate was justified in insisting the petitioner to file vakalath instead of filing memo of appearance as done in this case. Secondly, whether the Magistrate is justified in allowing the _absentia_ . petitioner to plead guilty in 5. Considering the first aspect, I have no doubt that the Crl.M.C.No.3788 OF 2021 4 learned Magistrate has gone wrong in insisting filing of vakalath. As rightly pointed out by the learned counsel for the petitioner, there is no law or statutory provision insisting him to file a vakalath. Rule 31 of the Criminal Rules of Practice and Chapter V of the Criminal Rules of Practice deals with appointment of pleaders. Rule 31 of the Criminal Rules of Practice states as follows:- **31. Pleader to file Memo of Appearance.** - Every pleader as defined in Clause (q) of Section 2 of the Code of Criminal Procedure, 1973, other than a Public Prosecutor, appearing either on behalf of the complainant or the accused, shall file a memorandum of appearance containing the following particulars: - i) A declaration that he is duly instructed by or on behalf of the party whom he claims to represent; - ii) Number and year of proceedings; iii) Name of the parties to the proceedings; - iv) Name and position in the proceedings of the party for whom he appears; - v) Roll Number; vi) Address of the Advocate. 6. There are provisions like Rule 33, Rule 35 etc. in the Criminal Rules of Practice which insist filing of vakalath. Rule 33 Crl.M.C.No.3788 OF 2021 5 provides that every pleader appearing on behalf of an accused who has been exempted from personal appearance shall file a vakkalath as prescribed by Rule 32. 7. Similarly, Rule 35 provides that no pleader shall be entitled to take delivery of property or receive money or documents on behalf of his client unless specifically authorised to do so by the vakkalath or the power of attorney. 8. Here mention is to be made about Rule 36 where appointment of a pleader to continue for getting copies of judgment etc., which are not relevant for this case. So going by Rule 31, it is evident that unless exemption for appearance before court is allowed, there is no logic in insisting filing of a vakalath. Therefore, on prima facie consideration the insistence to file a vakalath by the Magistrate, cannot be approved. 9. In this connection, a decision of this Court in **Joseph v. State of Kerala [1989 (1) KLT 574]** has been placed reliance where it has been succinctly held that on filing of memorandum of appearance, the pleader is entitled to appear and act on behalf of the accused in any criminal case. This has been reiterated by this Court in **State of Kerala v. Vishnu [2006 (1) KLT 445]** where it is held Crl.M.C.No.3788 OF 2021 6 that a pleader can appear and plead for a party before criminal court by filing memorandum of appearance in accordance with Rule 31 of the Criminal Rules of Practice and need not file a vakalath. That means, that part of the order of the learned Magistrate cannot be approved. 10. Closely related is the consideration whether the court is justified in allowing the petitioner to plead guilty by filing of memorandum of appearance. In fact, I cannot find fault with the learned Magistrate for insisting the filing of vakalath for pleading guilty. Here, the offences alleged are under Section 279 of the Indian Penal Code and Section 185 of the Motor Vehicles Act. There substantive sentence of imprisonment for six months and fine is attached against both the penal provisions. Therefore, the question is without granting exemption whether the petitioner is justified in pleading guilty. In fact, the petitioner has not moved any application for exemption under Section 205 of the Cr.P.C. That is evident from the statement of facts in the case. The petitioner is currently working in Dubai, he has not filed any vakalath nor has sought exemption from appearing before court. In fact granting exemption by a Magistrate to an accused from attending personally Crl.M.C.No.3788 OF 2021 7 on the date of posting is a matter of discretion vested in the court. Here, no application has been filed under Section 205 seeking permanent exemption, so that, that may be the guiding reason which prompted the learned Magistrate to reject the application. But that cannot be inferred from the order under challenge. 11. The prayer in the Crl.M.C. is to direct the court below to allow the petitioner to plead guilty to the offences alleged in Annexure 1 charge sheet through his pleader without filing vakalath, in the interest of justice. This relief cannot be granted. If this Court issues such a blanket direction that would amount to interference with the discretion expected to be exercised by the learned Magistrate in the matter of granting exemption to the accused. As I noticed earlier, the offences are not that light. It is alleged that the petitioner had driven a vehicle through public road in a drunken condition; he was subjected to alcohol test and found drunk. For such a person, if pleaded guilty, which penalty should be imposed, whether it should be confined to mere payment of fine or should be given substantive sentence etc., are matters of discretion to be exercised by the Magistrate on which this Court cannot have any say, at this stage. Therefore, the learned Magistrate is justified Crl.M.C.No.3788 OF 2021 8 in not granting permission. But from the order, it cannot be inferred that Rule 33 of the Criminal Rules of Practice was in mind, when the order was passed. As noticed earlier, Rule 33 comes into play only if he is granted exemption from personal appearance. Here that is not done. 12. Moreover, a summons under Section 204 of the Cr.P.C. is for the appearance of the accused. The golden rule is that a criminal proceedings should be conducted in the presence of the accused. Section 205 of the Cr.P.C. is an exception. That can be granted only on application and also on proper consideration. Here the petitioner wants to plead guilty, at the same time, he has not moved any application for permanent exemption. That cannot be accepted. Therefore, if the learned Magistrate is insisting filing of a vakalath under Rule 33 of the Criminal Rules of Practice, it cannot be found fault with. 13. To sum up, as a general rule, ordinarily, a memo of appearance alone is sufficient. But in a case where personal appearance is exempted, then only vakalath can be insisted. Therefore, Annexure 2 order is set aside to the extent of insisting the petitioner to file vakalath. At the same time, it is made clear that Crl.M.C.No.3788 OF 2021 9 this Court has not stated anything with regard to the insistence for personal appearance while pleading guilty in the case. Crl. M.C. is disposed of as above. **SD/K.HARIPAL JUDGE** **DCS/16.10.2021** Crl.M.C.No.3788 OF 2021 10 ## **APPENDIX** ## **PETITIONER'S ANNEXURE** |**ANNEXURE**|**1**|**TRUE COPY OF CHARGE SHEET DATED 13.10.2016**| |---|---|---| |||**IN CRIME NO.1831/2016 O N.PARAVUR POLICE**| |||**STATION.**| |**ANNEXURE**|**2**|**CERTIFIED COPY OF THE ORDER IN CRL.M.P**| |||**NO.642/2021 IN S.T.NO.3557 OF 2016.**|