IMPORTANT POINT
Right to appear before Court – Power of attorney holder cannot appear in Court on behalf of another, unless permitted by Court under Section 32 of Advocates Act, 1961.

ORDER

Bechu Kurian Thomas, J.—The question that arises for consideration is whether the defect noted by the Registry that a private party cannot appear on the basis of a power of attorney without permission of the court is sustainable.

2. Sri Abdul Wahid T.K. filed the above unnumbered writ petition seeking directions for registering an FIR and completing the investigation. He has not engaged an Advocate, but Sri. Asif Azad, a private individual, who claims to have been appointed to represent the petitioner on the basis of a power of attorney asserts that he has a right to appear on behalf of the petitioner. Since the petitioner filed his case as a party in person, with Sri. Asif Azad as the holder of the power of attorney to represent and argue on his behalf, the Registry noted two defects initially. One defect related to the failure to produce the original of the alleged power of attorney, which was subsequently cured on production. The other defect that remains to be rectified and the reply given on behalf of the petitioner is as follows:

“Defect 1 – To verify whether power of attorney could appear as party in person (1999 (2) KLT 108) without leave of the Court

REPLY GIVEN TO DEFECT 1 – I have already filed three writs, including a writ appeal, in this Honourable High Court of Kerala, using a power of attorney.

Party-in-person Representation: The right of an individual to represent themselves (party-in-person) in court is a recognized principle in Indian law, as guaranteed under Section 32 of the Advocates Act, 1961, which allows any person, with the permission of the court, to appear, plead and act in a case without an advocate. Therefore, you do have the legal right to represent yourself.

Power of Attorney: A power of attorney (PoA) is a legal instrument that allows one person to act on behalf of another.

Advocate’s Role: It is true that advocates need a Vakalatnama (a document authorizing a lawyer to represent someone in court) to conduct a case. However, Vakaltnama is distinct from PoA. An advocate’s role is defined by the Advocates Act, and they represent individuals in court under professional obligations.”

3. Sri. Asif Azad appeared online and submitted that he should be permitted to appear on behalf of the petitioner. The petitioner has not engaged an Advocate, but has executed a power of attorney in favour of Sri. Asif Azad, who is not an Advocate. The Power of Attorney holder wants to appear and argue on behalf of the petitioner. Though he has not filed any application to that effect, Sri. Asif Azad orally pleaded that he should be granted permission to that effect.

4. The question whether the holder of a power of attorney can plead on behalf of a party in person has been considered in various decisions after interpreting Section 32 of the Advocates Act, 1961 (for short ‘the Act’).

5. In T.C. Mathai and Another v. District And Sessions Judge, Thiruvananthapuram [(1999) 3 SCC 614] it was observed that permission must be obtained by the parties from the court and there is no independent right for a power of attorney holder to appear for parties before any court. The observations in the said decision being relevant, it is necessary to extract them as below:

“8. The work in a court of law is a serious and responsible function. The primary duty of a criminal court is to administer criminal justice. Any lax or wayward approach, if adopted towards the issues involved in the case, can cause serious consequences for the parties concerned. It is not just somebody representing the party in the criminal court who becomes the pleader of the party. In the adversary system which is now being followed in India, both in civil and criminal litigation, it is very necessary that the court gets proper assistance from both sides.

9. Legally qualified persons who are authorised to practise in the courts by the authority prescribed under the statute concerned can appear for parties in the proceedings pending against them.