IMPORTANT POINT
Resort to Section 256(1) Cr.P.C. must be with required judicial caution.

J. M. James, J—The non-appearance by the Counsel for the complainant before the Magistrate Court when the case was called and the absence of the complainant was sufficient ground for the Magistrate to resort to Section 256 (1), Cr.P.C. to acquit the accused and dismiss the complaint, and also whether the Counsel was not bound by the authority of the Vakalath executed by the complainant to continue to represent him unless the Vakalath ceased to operate, are the questions ‘posed before me for decision in this case.

2. The facts show that the complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 in short ‘the Act’ before the Judicial First Class Magistrate II, Sulthan Bathery. When the complaint came up for hearing on 30.1.2002, Counsel appearing for the complainant filed an application stating that the complainant was detained in judicial custody, in jail, in the State of Karnataka and, therefore, his absence for that day may be condoned. That application was allowed and the Court gave a fairly long adjournment to 22.4.2002. On that day, when the case was taken up, neither the complainant nor the Counsel, who filed the application on 30.1.2002, were present, There being, thus, no representation, the learned Magistrate acquitted the accused under Section 256(1), Cr. P.C. The same is under challenge in this appeal.

3. The learned Counsel for the appellant submitted that as the Counsel for the appellant did not know the further developments in the criminal case in which the appellant was detained in judicial custody, he could not make any effective submission before the Court. It is also further submitted that since the matter was brought to the notice of the Court as per the earlier application that the complainant was in jail in connection with another criminal case, the Court ought to have been more liberal and dismissal of the complaint and acquittal of the accused in the case was not as per the discretion conferred on the Magistrate by Section 256(1), Cr. P.C.

4. The learned Counsel for the 2nd respondent/accused contended that when an Advocate is appointed as per Rules 30 and 31 of the Criminal Rules of Practice, the Advocate continues to represent the complainant until the termination of the Vakalath, or till the death of either of the parties, or till the Vakalath is withdrawn by the complainant. Till such time, the Counsel is bound to protect the interest of the complainant. The failure on the part of the Counsel cannot be ground to interfere with the Order of acquittal that was passed by the Magistrate under Section 256(1), Cr.P.C. Counsel relied on the decision reported in Mulloor Chit Fund v. Pathumma Beevi1; Motilal v. L.Rs. of Late Poonampuri2 and Chengan Souri Nayakam v. A.N. Menon3.

5. Under Section 29 of the Advocates Act, 1961, Advocates alone are entitled to practise the profession of law. Section 30 of the Act lays down that an Advocate, whose name is entered in the State roll shall alone be entitled, as of right, to practise in the Courts in India. Rules 30 and 31 of the Kerala Criminal Rules of Practice, 1982 deals with the private pleaders and the procedure to be followed to appear and represent the parties before the Court. In Mulloor Chit Fund case, cited above, this Court had occasion to consider the effect service of notice in the revision petition on the Advocate who appeared in the appeal and a learned Single Judge held, relying on Section 107(1) and Order III Rule 4 of the Code of Civil Procedure that such service of notice on the Advocate would be sufficient notice, unless the Counsel submits to the Court that he has no instruction. In Motilal’s case (supra), the Rajasthan High Court also had occasion to consider the same question and the Court held that once an advocate is engaged as a pleader by a client, the authority of the Advocate to represent the client continues to remain in force until it is determined with the leave of the Court in writing, signed b