The court clarified the distinction between requiring a memo of appearance and a vakalath, emphasizing the sufficiency of the former in the absence of a personal appearance exemption.

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 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 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 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 vaka