IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE G. S. AHLUWALIA th ON THE 13 OF DECEMBER, 2024 MISC. CRIMINAL CASE No. 28267 of 2024 VISHNU SHARMA Versus RAKESH SHARMA AND OTHERS Appearance:

Shri H.K. Shukla- Advocate for applicant.

Shri Nirmal Sharma- Advocate for respondent No.2.

ORDER This application, under Section 528 of B.N.S.S., 2023 (Section 482 of Cr.P.C.), has been filed against the order dated 13.03.2024 passed by Sessions Judge, Gwalior, District Gwalior (M.P.) in Criminal Revision No.35/2024 as well as order dated 11.12.2023 passed by JMFC, Gwalior in Criminal Case No.1817/2017 by which wife has been permitted to depose for and on behalf of her husband. However, Trial Court has also specifically mentioned that wife would be entitled to lead evidence only in respect of those facts which are in her personal knowledge.

2. Challenging the orders passed by the trial court as well as by the revisional court, it is submitted by counsel for applicant that holder of power of attorney can depose in respect of only those acts which were performed by him and cannot depose on or behalf of principal. To buttress his contention, counsel for applicant has relied upon the judgment passed by Supreme Court in the case of Janki Vashdeo Bhojwani And Another Vs.

Signature Not Verified Signed by: PAWAN IndusInd Bank Ltd. And Others reported in (2005) 2 SCC 217.

3. Per contra, application is vehemently opposed by counsel for respondent No.2. It is submitted that in view of Section 120 of Evidence Act, wife is a competent witness.

4. Heard learned counsel for the parties.

5. The Supreme Court in the case of Janki Vashdeo Bhojwani (supra)

has held as under:

17. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri v. State of Rajasthan [(1986) 2 WLN 713 (Raj)] it was held that a general power-of-attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of-attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.

18. The aforesaid judgment was quoted with approval in the case of Ram Prasad v. Hari Narain [AIR 1998 Raj 185 : (1998) 3 Cur CC 183] . It was held that the word “acts” used in Rule 2 of Order 3 CPC does not include the act of power-of-attorney holder to appear as a witness on behalf of a party. Power-of-attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC.

21. We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri [(1986) 2 WLN 713 (Raj)] followed and reiterated in the case of Ram Prasad [AIR 1998 Raj 185 : (1998) 3 Cur CC 183] is the correct view. The view taken in the case of Floriano Armando Luis [(2002) 2 Bom CR 754] cannot be said to have laid down a correct law and is accordingly overruled.

Signature Not Verified Signed by: PAWAN Thus, it is clear that holder of power of attorney can depose in respect of act performed by him but cannot appear as a witness for & on behalf of his principal. However, Section 120 of Evidence Act is an exception which provides that the husband or wife may be a competent witness. Trial Court has granted permission to wife of complainant to appear in witness box with a clear rider that she would depose in respect of only those facts which are in her knowledge.

6. Now, the only question for consideration is as to whether Section 120 of Evidence Act would apply to t