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2006(1) Bankmann 494
SUPREME COURT OF INDIA
B.N. Agrawal & H.K. Sema, JJ.
Jimmy Jahangir Madan — Appellant
versus
Bolly Cariyappa Hindley (D)
by LRs. — Respondents.
Cri. Appeal Nos. 1222-1223 of 2002
Decided on 4-11-2004
FOR THE APPELLANT:MR. DHRUV MEHTA, MS. SHALINI GUPTA, MR. MOHIT CHAUDHRY, FOR M/S. K.L. MEHTA & CO., ADVOCATES.
FOR THE RESPONDENTS:MR. K.R. CHAUDHRY, SR. ADVOCATE WITH MR. JOSHUA H. SAMUEH AND MR. RAKESH K. SHARMA, ADVOCATES.
IMPORTANT POINT
In a prosecution under Section 138 Negotiable Instruments Act on the death of complainant legal heir himself could move an application under Section 302 Cr.P.C. for permission to continue the prosecution and such application could not be moved by power of attorney holder of such heir.
Headnote:NEGOTIABLE INSTRUMENTS ACT, 1881—SECTION 138—CRIMINAL PROCEDURE CODE, 1973—SECTION 302—DEATH OF COMPLAINANT DURING TRIAL OF COMPLAINT UNDER SECTION 138 NEGOTIABLE INSTRUMENTS ACT—COMPLAINANT LEFT BEHIND A SON AND DAUGHTER WHO WERE STAYING IN UNITED STATES AND THEY EXECUTED A GENERAL POWER OF ATTORNEY IN FAVOUR OF RESPONDENTS—ATTORNEY HOLDERS OF THE HEIRS FILED APPLICATION UNDER SECTION 302 CR.P.C. FOR PERMITTING THEM TO CONTINUE THE PROSECUTION—PRAYER WAS CONTESTED AND MAGISTRATE ALLOWED APPLICATION—HIGH COURT AFFIRMED THE ORDER IN REVISION—APPEAL—WHETHER APPLICATION UNDER SECTION 302 CR.P.C. TO CONTINUE THE PROSECUTION COULD BE FILED BY POWER OF ATTORNEY HOLDER OF HEIRS OF COMPLAINANT? NO—PERMISSION COULD BE GRANTED BY COURT WHERE PROSECUTION WAS PENDING ONLY IF IT WAS SOUGHT BY PERSON WHO WAS ENTITLED TO CONTINUE THE PROSECUTION I.E. HEIRS THEMSELVES, AND NOT BY THE POWER OF ATTORNEY HOLDER.
HELD: UNDER SECTION 302 OF THE CODE, A PARTY CAN MAKE AN APPLICATION HIMSELF TO CONTINUE THE PROSECUTION OR THE SAME CAN BE MADE BY A PLEADER, AS PROVIDED UNDER SECTION 2(Q) OF THE CODE, THE PRAYER TO CONTINUE THE PROSECUTION CAN BE MADE EITHER BY A LEGALLY QUALIFIED PERSON, WHO IS AUTHORISED PRACTISE IN THE COURT UNDER THE ADVOCATES ACT; OR BY ANY OTHER PERSON WHICH WOULD OBVIOUSLY INCLUDE A POWER OF ATTORNEY HOLDER IN WHICH EVENTUALITY SUCH PERMISSION CAN BE GRANTED BY THE COURT WHERE THE PROSECUTION IS PENDING ONLY IF IT IS SOUGHT BY THE PERSON WHO IS ENTITLED TO CONTINUE THE PROSECUTION AND NOT BY THE POWER OF ATTORNEY HOLDER. UNDER SECTION 205 OF THE CODE, AN ACCUSED IS REQUIRED TO APPEAR IN PERSON BUT HIS PERSONAL APPEARANCE CAN BE DISPENSED WITH AND HE CAN BE ALLOWED TO BE REPRESENTED BY A PLEADER, LIKEWISE, UNDER SECTION 302 OF THE CODE, A PERSON, WHO IS ENTITLED TO CONTINUE THE PROSECUTION, IS REQUIRED TO MAKE AN APPLICATION HIMSELF BUT UNDER BOTH THE PROVISIONS AFORESAID, INSTEAD OF TAKING STEPS PERSONALLY, A PARTY CAN BE REPRESENTED THROUGH A PLEADER. POWER OF ATTORNEY HOLDER CAN REPRESENT THE CONCERNED PARTY UNDER BOTH THE PROVISIONS OF THE CODE, IN CASE PERMISSION FOR SUCH REPRESENTATION IS SOUGHT FROM THE COURT BY THE CONCERNED PERSON AND GRANTED BY IT. BUT WHERE NO SUCH PERMISSION IS SOUGHT BY THE CONCERNED PERSON, MEANING THEREBY, IN THE CASE OF SECTION 205 OF THE CODE—AN ACCUSED AND IN THE CASE OF SECTION 302 OF THE CODE—A PARTY WHO HAS RIGHT TO CONTINUE THE PROSECUTION, POWER OF ATTORNEY HOLDER CANNOT BE ALLOWED TO REPRESENT THE CONCERNED PERSON IN THE PROCEEDING.
IN THE PRESENT CASE, NEITHER HEIRS OF THE COMPLAINANT FILED PETITION UNDER SECTION 302 OF THE CODE TO CONTINUE THE PROSECUTION NOR ANY PERMISSION WAS SOUGHT BY THEM FROM THE COMPETENT COURT THAT THEY SHOULD BE ALLOWED TO CONTINUE THE PROSECUTION THROUGH THE POWER OF ATTORNEY HOLDERS, RATHER THE PRAYER WAS MADE BY THE POWER OF ATTORNEY HOLDERS, WHICH IS NOT PERMISSIBLE UNDER LAW. THIS BEING THE POSITION, WE ARE OF THE VIEW THAT THE TRIAL COURT WAS NOT JUSTIFIED IN ALLOWING THE PETITIONS UNDER SECTION 302 OF THE CODE AND THE HIGH COURT HAS COMMITTED AN ERROR IN CONFIRMING THE SAID ORDER WHICH IS LIABLE TO BE SET ASIDE AND PETITIONS UNDER SECTION 302 OF THE CODE ARE FIT TO BE DISMISSED GIVING LIBERTY TO THE HEIRS EITHER TO MAKE APPLICATION THEMSELVES BEFORE THE COURT CONCERNED TO CONTINUE THE PROSECUTION OR APPLY TO THE COURT TO GRANT PERMISSION TO THEM TO AUTHORIZE THE POWER OF ATTORNEY HOLDERS TO CONTINUE THE PROSECUTION ON THEIR BEHALF. (PARAS 9 & 10)
RESULT: APPEAL ALLOWED.
B.N. AGRAWAL, J.—THESE APPEALS BY SPECIAL LEAVE HAVE BEEN FILED AGAINST Judgment RENDERED BY KARNATAKA HIGH COURT IN REVISION APPLICATIONS UPHOLDING Order PASSED BY THE ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BANGALORE, IN TWO COMPLAINT CASES WHEREBY PETITIONS FILED UNDER SECTION 302 OF THE CODE OF CRIMINAL PROCEDURE, 1973 (HEREINAFTER REFERRED TO AS ‘THE CODE’) FOR ALLOWING POWER OF ATTORNEY HOLDERS OF HEIRS OF THE ORIGINAL COMPLAINANT TO CONTINUE THE PROSECUTION WERE ALLOWED.
2. THE SHORT FACTS ARE THAT ONE MRS. BOLLY CARIYAPPA HINDLEY FILED TWO COMPLAINTS FOR PROSECUTION OF THE APPELLANT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT (HEREINAFTER REFERRED TO AS ‘THE ACT’) IN WHICH COGNIZANCE WAS TAKEN AND THE ACCUSED WAS SUMMONED. DURING TRIAL, THE COMPLAINANT DIED LEAVING BEHIND HER SON PETER BALDWIN JR. AND DAUGHTER MRS. NINA BALDIN EDDY WHO WERE STAYING IN UNITED STATES OF AMERICA, AS SUCH THEY EXECUTED A GENERAL POWER OF ATTORNEY IN FAVOUR OF MR. JOHN CURTIS: AND MRS. ANNIE CARIAPPA, RESPECTIVELY. THE TWO GENERAL POWER OF ATTORNEY HOLDERS OF THE AFORESAID HEIRS FILED APPLICATIONS UNDER SECTION 302 OF THE CODE IN THE AFORESAID CASES BEFORE THE TRIAL COURT FOR PERMITTING THEM TO CONTINUE THE PROSECUTION THEREIN, WHICH PRAYER WAS CONTESTED BY THE ACCUSED, BUT THE LEARNED MAGISTRATE ALLOWED THE APPLICATIONS AND PERMISSION WAS GRANTED TO CONTINUE THE PROSECUTION. CHALLENGING THE AFORESAID Order, TWO REVISION APPLICATIONS WERE FILED BEFORE THE HIGH COURT OF KARNATAKA BY THE ACCUSED WHICH HAVING BEEN DISMISSED, THE SAME NECESSITATED FILING OF THESE APPEALS BY SPECIAL LEAVE.
3. MR. DHRUV MEHTA, LEARNED ADVOCATE APPEARING ON BEHALF OF THE APPELLANT, SUBMITTED THAT THE POWER OF ATTORNEY HOLDERS HAD NO RIGHT TO FILE AN APPLICATION UNDER SECTION 302 OF THE CODE TO CONTINUE THE PROSECUTION WHICH COULD HAVE BEEN FILED BY HEIRS OF THE COMPLAINANT, AS SUCH, THE PETITIONS UNDER SECTION 302 OF THE CODE WERE NOT MAINTAINABLE AND LIABLE TO BE DISMISSED ON THIS COURT ALONE. MR. K.R. CHAUDHARY, LEARNED SENIOR ADVOCATE APPEARING ON BEHALF OF THE RESPONDENTS, ON THE OTHER HAND, SUBMITTED THAT THE PETITIONS UNDER SECTION 302 OF THE CODE BY THE POWER OF ATTORNEY HOLDERS WERE MAINTAINABLE AND THE TRIAL COURT WAS JUSTIFIED IN ALLOWING THE SAME.
4. THE QUESTION THAT ARISES FOR CONSIDERATION IS AS TO WHETHER APPLICATION UNDER SECTION 302 OF THE CODE TO CONTINUE THE PROSECUTION COULD BE FILED BY POWER OF ATTORNEY HOLDERS OF HEIRS OF THE COMPLAINANT? IN Order TO APPRECIATE THE POINT, IT WOULD BE USEFUL TO REFER TO SECTION 302 OF THE CODE WHICH RUNS THUS: .
“Permission to conduct prosecution.—(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission;
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader.”
5. THE QUESTION AS TO WHETHER HEIRS OF THE COMPLAINANT CAN BE ALLOWED TO FILE AN APPLICATION UNDER SECTION 302 OF THE CODE TO CONTINUE THE PROSECUTION IS NO LONGER RES INTEGRA AS THE SAME HAS BEEN CONCLUDED BY A DECISION OF THIS COURT IN THE CASE OF ASHWIN NANUBHAI VYAS V. STATE OF MAHARASHTRA & ANR.1 IN WHICH CASE THE COURT WAS DEALING WITH A CASE UNDER SECTION 495 OF THE CODE OF CRIMINAL PROCEDURE, 1898, WHICH IS CORRESPONDING TO SECTION 302 OF THE CODE. IN THAT CASE, IT WAS LAID DOWN THAT UPON THE DEATH OF THE COMPLAINANT, UNDER THE PROVISIONS OF SECTION 495 OF THE SAID CODE, MOTHER OF THE COMPLAINANT COULD BE ALLOWED TO CONTINUE THE PROSECUTION. IT WAS FURTHER LAID DOWN THAT SHE COULD MAKE THE APPLICATION EITHER HERSELF OR THROUGH A PLEADER
