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D.A.S Swami v. Kubendran .

Madras High Court

Jun 29, 1966

Judgment

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Structured Summary of the Opinion

Factual and Procedural Background

This revision petition was filed under Section 439 of the Criminal Procedure Code (Cr PC) by D.A.S. Swami in his personal capacity against an order dated 8 June 1966. The underlying criminal complaint (C.C. 6481 of 1966) on the file of the Second Presidency Magistrate, Madras, was lodged by one Kuppuswami alias Kubendran against Kandaswami Mudaliar under Sections 409 and 403 of the Indian Penal Code.

Procedural chronology as recorded in the opinion:

23 April 1966: Complainant prayed for issue of summons for appearance on 30 April 1966.
30 April 1966: Advocate Sri T.R. Venkataraman entered appearance for the accused and excused the accused's absence on medical grounds; the matter was adjourned (later listed to 20 May 1966 after an intermediate holiday).
In the interim the accused executed a power of attorney in favour of D.A.S. Swami authorising him to represent the accused in C.C. 6481 of 1966 and to apply under Section 4(1)(r) and Section 540-A of the Cr PC. Although Swami held a law degree, he was not enrolled as an advocate on the rolls of the court.
10 May 1966: Swami (describing himself as the accused's agent) presented petitions — one invoking Section 4(1)(r) for permission to appear through him and another under Section 540-A seeking dispensation of the accused's personal attendance. No orders were initially passed on those petitions.
20 May 1966: A further petition under Section 540-A signed by Swami was answered by an order of the learned Magistrate interpreted as “dispensed with”.
31 May 1966: The complainant's counsel filed a petition contending that only an advocate with special vakalat can represent the accused and praying that the court direct the accused to appear or be represented by a duly authorised agent; the Magistrate subsequently passed an order on 8 June 1966 directing the accused to appear and move for permission of the court to appoint his pleader if necessary.
In consequence, D.A.S. Swami filed the present revision petition challenging the Magistrate's order dated 8 June 1966. Swami filed the revision in his own name (i.e., in his personal capacity) rather than in the name of the accused.

Legal Issues Presented

Whether a person who holds a law degree but is not enrolled on the rolls as an advocate (here, D.A.S. Swami) can represent and plead for an accused in a criminal proceeding without first obtaining the court's permission contemplated by Section 4(1)(r) of the Cr PC.
Whether D.A.S. Swami, having filed the revision petition in his personal capacity, has locus standi to ventilate the accused's grievance before the court.
Whether Section 4(1)(r) of the Cr PC (requiring prior court permission for a person who is not an advocate, vakil or attorney to act as a pleader) is unconstitutional as infringing fundamental rights under Articles 19(1)(f) and 19(1)(g) of the Constitution, and if so whether any restriction is justifiable under Articles 19(5) or 19(6).

Arguments of the Parties

Appellant (D.A.S. Swami) — summary of arguments recorded in the opinion

He contended that the statutory definition of "pleader" in Section 4(1)(r) of the Cr PC, which uses the word "includes," is not exhaustive and therefore does not bar a power of attorney agent like himself from representing an accused.
He argued that other provisions and forms in the Criminal Procedure Code and Indian Penal Code refer to "agents of the accused" (e.g., Sections 172, 173, 174 IPC and Forms 12 and 13 of Schedule V to the Cr PC), showing that agents may act for accused persons without prior permission.
He contended that requiring prior permission would interfere with the accused's fundamental rights, including the right to choose who represents him and certain property/occupational rights invoked under Article 19(1)(f) (the opinion records his reliance on Article 19(1)(f) in this context).
In the alternative, Swami claimed a personal grievance: that as a person carrying on the occupation of a power of attorney agent he has a fundamental right under Article 19(1)(g) to carry on his occupation, and the requirement of prior court permission under Section 4(1)(r) is void for violation of that right (invoking Article 19(6) and the permissibility of reasonable restrictions).
He also advanced practical considerations — e.g., that an accused might not be able to afford an enrolled advocate and might wish to have a relative or agent represent him — as a reason to allow agents like himself to appear without prior permission.

Complainant / Respondent (as recorded by the Magistrate's petition)

The complainant's counsel submitted that the accused was not appearing and that no power of attorney can represent the accused under Section 205 of the Cr PC; only an advocate with a special vakalat can represent the accused and none else.
The complainant prayed that the court direct the accused to appear in person or by a duly authorised agent and reject the memo filed by the power of attorney holder.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Thayarammal v. Kuppuswami Naidu, AIR 1937 Mad 937; 1937-2 Mad LJ 552 (Full Bench)	Interpreted provisions (Clauses 9 and 10 of the Letters Patent) to deny right of audience to persons who are not enrolled advocates and warned of undesirable consequences if non-lawyers were allowed a right of audience.	The court relied on the Full Bench's reasoning to support the proposition that a non-enrolled person cannot claim a right of audience; it treated that Full Bench interpretation as persuasive background even though those decisions arose in civil matters.
L.P.A. (S.R.) No. 1363 of 1966 (Mad)	Bench decision refusing the right of audience to D.A.S. Swami in a civil context (referring to recent application of the Full Bench principle).	The court noted that Swami himself had been refused a right of audience in that recent Bench decision and used this fact to reinforce the conclusion that non-enrolled persons do not have an automatic right to plead in court.

Court's Reasoning and Analysis

The court's analysis proceeded in a series of discrete legal determinations based strictly on the materials and arguments before it:

Identity and procedural posture: The petition was filed by D.A.S. Swami in his personal capacity; Swami was a law-degree holder but not enrolled as an advocate on the rolls of the court, and therefore he lacked an automatic right of audience under the court's Letters Patent (Clauses 9 and 10).
Statutory interpretation of "pleader" (Section 4(1)(r) Cr PC): The court examined the definition of "pleader" which uses the word "includes" and determined that, in context, the definition must be read as exhaustive (in practical effect "means and includes") so as to give effect to sub-clause (2) which requires prior permission of the court where the pleader is not an advocate, vakil or attorney. The court explained that reading "includes" non-exhaustively would render the sub-clause meaningless.
Distinction from other statutory references to "agents": The court accepted that other provisions or forms in the Cr PC or IPC reference "agents of the accused" but held that such provisions do not control the interpretation of the specific definition of "pleader" in Section 4(1)(r). Where the Legislature expressly required court permission for persons who are not qualified legal practitioners, that requirement must be respected.
Locus standi: Because Swami was not an enrolled advocate and had not sought or obtained the permission required by Section 4(1)(r), the court concluded he had no locus to complain in the present petition on behalf of the accused. The opinion states that it would be appropriate for the accused himself to file any further petition if he chose to do so.
Constitutional challenge under Articles 19(1)(f) and 19(1)(g): The court addressed two related strands of constitutional argument:
- As to the accused's asserted right to choose any person (including an agent) to represent him and possible interference with Article 19(1)(f) (as invoked in the petition), the court found that construing Section 4(1)(r) to require prior court permission does not amount to an unreasonable interference with Article 19(1)(f) and, in any case, could be justified as a reasonable restriction in the interests of the general public under the relevant permitting provisions (the opinion refers to the availability of justifications under the Constitution).
- As to Swami's alternative contention that his occupation as a power-of-attorney agent falls within Article 19(1)(g) and that Section 4(1)(r) is therefore void, the court assumed (without deciding) that the activity could be called an "occupation" but held that the statutory requirement of prior court permission is a reasonable restriction under Article 19(6) (which permits the State to impose qualifications and reasonable restrictions in the interests of the general public, particularly as regards professional or technical qualifications).
Practical and policy considerations: The court reiterated the policy reasons behind restricting the right of audience to qualified persons or to persons permitted by the court. It noted the disciplinary framework that applies to enrolled legal practitioners, and the risk of undesirable consequences if non-lawyers were permitted unregulated rights of audience in court.
Conclusion of analysis: On both statutory construction and constitutional grounds the court found the requirement of prior permission operative and reasonable; thus Swami could not claim a right to plead for the accused without permission and had no standing to bring the present petition in the accused's name.

Holding and Implications

Holding: Petition dismissed.

Direct practical consequences (as recorded in the opinion):

The court held that D.A.S. Swami, not being an enrolled advocate and not having obtained the prior permission contemplated by Section 4(1)(r) of the Cr PC, cannot claim a right of audience to represent and plead for the accused in the criminal proceedings.
The court found that Swami lacked locus standi to ventilate the accused's grievance in his own name; if the accused wishes to challenge the Magistrate's order, it will be open to the accused personally to file a revision petition.
The court upheld the requirement in Section 4(1)(r) as a permissible and reasonable restriction within the constitutional framework (the opinion treats the requirement as justifiable under the provisions of the Constitution permitting reasonable restrictions on certain professions/occupations).

The opinion records the dismissal of the petition and explains the statutory and constitutional bases for requiring prior court permission for persons who are not enrolled advocates to act as pleaders in criminal proceedings. The opinion does not purport to announce a novel general principle beyond applying established statutory construction and constitutional reasoning to the facts; it relies on earlier judicial authorities and recent Bench decisions as described in the text.

CK/SBG/D.V.C

Show all summary ...

1. The facts giving rise to this revision petition filed under Section 439 of the Cr PC by one D.A.S Swami in his personal capacity are these. In C.C 6481 of 1966 on the file of the Second Presidency Magistrate, Madras, one Kuppuswami alias Kubendran filed a complaint against Kandaswami Mudaliar under Sections 409 and 403. I.P.C On 23-4-1966 he prayed for the issue of the summons to the accused for appearance on 30-4-1966. On 30-4-1966 one Sri T.R Venkataraman, a lawyer, entered appearance on behalf of the accused and prayed that the absence of the accused for that day might be excused on medical grounds. That was excused. The case was adjourned to 9-5-1966, and that day, being a holiday, it was adjourned again to 20-5-1966. In the meantime the accused executed a power of attorney in favour of D.A.S Swami. It may be taken that thereby Sri T.R Venkataraman was no longer appearing for the accused. The power of attorney is in the following terms:

“I hereby appoint my lawyer Mr. D.A.S Swami, B.A.B.L of 33 Habibullah Sahib St. T. Nagar. Madras to represent me and to act on my behalf in C.C 6481 of 1966 and M.P 70 of 1966 on the file of the Second Presidency Magistrate, George Town, in addition to or in substitution for any advocate engaged or to be engaged by him. He is further authorised by me to apply under S. 4(1)(r) and Section 540-A of the Cr PC.”

2. It may be mentioned at once that though in the power of attorney D.A.S Swami is described as a lawyer and is a person holding a law degree, actually he is not on the rolls as a lawyer. It is necessary to mention this at the outset, because there is a special definition of a “pleader” in Section 4(1)(r) of the Cr PC to the following effect:

“‘Pleader’ used with reference to any proceeding in any Court means a pleader authorised under any law for the time being in force in practice in such court, and includes an advocate, a vakil and an attorney of a High Court so authorised and any other person appointed with the permission of the court to act in such proceeding”.

3. Since Swami was not an advocate, a vakil or an attorney, he would not be a pleader under the first sub-clause and would require the permission of the court under sub-clause (2) to be a pleader and act for the accused in the case. The power of attorney seems to take note of this and that was why it mentioned Section 4(1)(r). On 10th May 1966 itself D.A.S Swami presented two petitions; one petition in the name of the accused under Section 4(1)(r) was to this effect:

“It is prayed that the petitioner be permitted to appear through his lawyer D.A.S Swami in whose favour he has executed a power of attorney for this purpose”.

4. The other petition was under Section 540-A of the Cr PC to this effect:

“It is prayed that the personal attendance of the petitioner be dispensed with as a medical certificate has been already produced”.

5. Both these petitions were signed by D.A.S Swami styling himself as “petitioner's agent”. No orders were passed on the above petitions. Section 540-A may be quoted here:

“At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the court is not necessary in the interests of justice, the Judge or Magistrate may, if the accused is represented by a pleader dispense with his attendance and proceed with such enquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.”

6. On 20th May 1966 a further petition was presented in the name of the accused to this effect:

“It is prayed that the presence of the accused be dispensed with under Section 540-A of the Cr PC.”

7. This was also signed by D.A.S Swami as “petitioner's agent”. The learned Magistrate passed an order which may be deciphered as “dispensed with”. Some two petitions were filed on 27th May 1966 and 30th May 1966, but they were ordered to be called on 31st May 1966.

8. On 31st May 1966 the complainant's counsel presented a petition to the following effect:

“The accused in the above case is not appearing before this Hon'ble Court and no power of attorney can represent the accused under Section 205 of the Cr PC Only an advocate in whose behalf special Vakalat is given by the accused can represent the accused and none else. It is prayed that this Hon'ble Court may be pleased to direct the accused to appear in this Hon'ble court or a duly authorised agent and reject the memo filed by the power of attorney holder”.

9. Section 205(1) of the Cr PC may be quoted here:

“Whenever a magistrate issues a summons, he may, if he sees reasons so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader”.

10. Upon the above petition, the learned Magistrate passed the following order on 8th June 1966:

“Heard. Unless the accused appoints and the court permits one cannot come in as pleader to represent the accused. As such the accused is directed to appear and move for permission of Court to appoint his pleader if necessary.”

11. The present revision petition has been filed against the above order dated 8th June 1966.

12. As stated already, this petition has been filed by D.A.S Swami on his own behalf and not in the name of the accused. A question arises out of this straightway whether D.A.S Swami can claim a right of audience in this court on behalf of the accused in the case. On this, clauses 9 and 10 of the Letters Patent of this court make it clear that since D.A.S Swami, is not an advocate on the rolls of this court he cannot have a right of audience to represent the accused. The only exception to these Clauses 9 and 10 is that any suitor shall be allowed to appear, plead or act on behalf of a co-suitor. But that exception does not apply here. These provisions have been interpreted by a Full Bench of this court in Thayarammal v. Kuppuswami Naidu, AIR 1937 Mad 937 : 1937-2 Mad LJ 552 and this has been followed recently by a Bench of this court in L.P.A (S.R) No. 1363 of 1966 (Mad). The Full Bench case points out the undesirable consequences which would ensue if a person other than a lawyer is allowed to have a right of audience. A lawyer who is qualified for the purposes is subject to some discipline, but this cannot be necessarily postulated of persons other than lawyers. It is of some interest to note that in L.P.A (S.R) No. 1363 of 1966 (Mad), the right of audience was refused to Sri D.A.S Swami himself. But those decisions are in civil matters, and so far as these matters, and so far as the Criminal Procedure Code is concerned, there is a special provision in Section 4(1)(r). Here again, as I have already pointed out, D.A.S Swami cannot come in under the first clause he not being an advocate, vakil or an attorney on the rolls of this court, and in order to plead for the accused, he must gel the permission of this court. But D.A.S Swami does not seek any such permission from me and claims to have a right to plead for the accused without any such permission. Alternatively he says that he has a grievance in his individual capacity against the order dated 8th June 1966 and that he is entitled to ventilate that grievance in his own right without any permission.

13. I shall lake up the first part of his argument. His contention is that the definition of “pleader” in Section 4(1)(r) of the Cr PC used only the word “includes” and is, therefore, not an exhaustive definition and cannot bar a power of attorney agent like himself. He points out that there are other sections in the Criminal Procedure Code and the Indian Penal Code using the words “agents of the accused”, for instance. Sections 172, 173 and 174, I.P.C” and Forms 12 and 13 of Sch V to the Crl. P.C I am however unable to accept this contention. The definition of “pleader” in Section 4(1)(r) of the Cr PC must be understood as an exhaustive definition, that is as saying “means and includes”. To hold otherwise would mean that sub-clause (2) of the definition requiring the previous permission of the court in the case of a person who is not an advocate, a vakil or attorney of a High Court, would become a dead letter. The context, therefore, clearly shows that the definition is an exhaustive one. It may be that for the other purposes contemplated in the provisions and forms quoted by D.A.S Swami an agent may represent the accused without prior permission of the court. But that cannot control the interpretation of the definition of “pleader” in Section 4(1)(r) of the Cr PC It is also understandable that where a person other than an advocate, a vakil or an attorney is given the privilege of pleading for an accused, previous permission of the Court is necessary. Hence both as a matter of construction and on the probability of the matter, I have no difficulty in holding that the definition of “pleader” in Section 4(1)(r) means that a person who is not an advocate, vakil or attorney, requires the permission of the court to become a pleader as defined. Hence, the contention of D.A.S Swami that he has a right to argue the case of the accused in this criminal revision petition without such permission cannot be accepted.

14. D.A.S Swami contends that the above interpretation would interfere with the fundamental right of the accused to insist on anybody of his own choice, but necessarily a lawyer representing him and arguing his case D.A.S Swami urges that the accused might not have the means to engage a lawyer and might find it cheaper to ask his son or person Eke D.A.S Swami to appear for him and that the requirement in Section 4(1)(r) of the Cr PC of the previous permission of the court would be an unwarranted restriction on the right of the accused to acquire, hold and dispose of property within Article 19(1)(f) of the Constitution. It seems to me that this argument is very far-fetched and that it will be straining the language to say that the requirement in Section 4(1)(r) of the previous permission of the court to act for the accused in the case of a person other than an advocate, a vakil or an attorney, is an interference with the fundamental rights of the accused under Article 19(1)(f) of the Constitution. The definition is intended to regulate the procedure in Criminal court, and from that point of view it is quite reasonable for the Legislature to say that the permission of the court is required in the case of a person other than an advocate, a vakil or an attorney. Even if it should be considered as restrictive of the fundamental right under Article 19(1)(f) it can be justified under Article 19(5) of the Constitution as a reasonable restriction in the interests of the general public. Swami refers to the provision in Article 19(6) of the Constitution which refers to sub-clause (g) of Article 19(1) which says:

“All citizens shall have the right to practice any profession, or to carry on any occupation trade or business.”

15. Article 19(6) says:

“Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to—

(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business.

(ii) … …”

16. The argument is that D.A.S Swami is carrying on the occupation of being a power of attorney agent of persons like the accused and that it will be competent for the State under Article 19(6) to impose a reasonable restriction on the said right of D.A.S Swami when he seeks to represent, plead and act for the accused in a criminal case and that because of the existence of such a power it is unnecessary to restrict the right of the accused to choose a person of his own choice to represent and plead for him. Now it seems to me that this very argument gives away the case of D.A.S Swami and justifies the restriction in Section 4(1)(r) of the Cr PC, requiring the permission of the Court where a person other than an advocate, a vakil or an attorney wants to act for the accused. It will be seen that in the above argument D.A.S Swami concedes that it will be competent for the State to impose some technical qualification where the power of attorney agent wants to appear in court and plead for an accused and it will be noted that the provision in Sec. 4(1)(r) concerns itself directly only with such a situation. It does not purport to affect the general right of a person like D.A.S Swami to carry on the occupation of being a power of attorney agent of others. Section 4(1)(r) of the Cr PC will come into play only where such a person seeks to act for the accused and plead for him.

17. It should be clear from the discussion so far that D.A.S Swami has no locus standi to ventilate in this petition any grievance of the accused. It will be time enough to consider the situation if the accused himself should come forward with another criminal revision petition ventilating his own grievance.

18. I shall turn to the alternative limb of the argument of D.A.S Swami that in this petition he is ventilating his own personal grievance. He urges that he has got a fundamental right under Article 19(1)(g) to carry on the occupation of a power of attorney agent of persons like the accused and that the provision in Section 4(1)(r) of the Cr PC requiring him to seek the previous permission of the court is in violation of that fundamental right and must be struck down. I shall assume for the purpose of this argument without deciding it that the activity of D.A.S Swami can be called “carrying on an occupation” within the meaning of Article 19(1)(g). As part of the occupation he wants to appear in a criminal court and act for the accused by which he also means a right to plead for the accused. It seems to me that the restriction in Section 4(1)(r) of the Cr PC, requiring the previ ous permission of the court is quite a reasonable restriction within the meaning of Article 19(6) of the Constitution. Article 19(6) itself contemplates that it is open to the State to make a law relating to professional or technical qualification necessary for practising any profession, or carrying on any occupation, and Section 4(1)(r) of the Cr PC can be justified under this provision. The court may in a given case permit even a person not qualified in law to plead for an accused and certainly the previous permission of the court is only a minium requirement and cannot be attacked as an unreasonable restriction on the supposed fundamental right of D.A.S Swami. In the result, the petition is dismissed.