Permission to appearance of power of attorney holder (non-advocate)
Dipak
(Querist) 25 February 2017
This query is : Resolved
1.If a petitioner is represented through power of attorney holder (non-advocate) in contested Divorce suit of family court, is it mandatory to file an application for permission to appearance of power of attorney holder on behalf of the petitioner before family court ? Under which law or section?
2. Can power of attorney holder of the petitioner file divorce petition before family court without getting permission from the family court?
Adv. Yogen Kakade
(Expert) 26 February 2017
Read the following judgement, it might help you. I have highlighted the contents which might be relevant to your case.
Madras High Court
Deepalakshmi vs K.Murugesh Rep. By His on 20 July, 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.07.2012
CORAM
THE HONOURABLE MR. JUSTICE S.NAGAMUTHU
Crl.O.P.Nos.27285 and 27329 of 2010
and
M.P.Nos.1, 1 of 2010 and 1 and 1 of 2011
1.Deepalakshmi
2.R.Padmanabhan
3.P.Usha Rani ... Petitioners in
Crl.O.P.No.27285 of 2010
1.M.Mohankumar
2.M.Suganya ... Petitioners in
Crl.O.P.No.27329 of 2010
..Vs..
1.K.Murugesh rep. By his
Father/Power of Attorney Holder
Dr.A.R.Kasilingam
2.M.Mohankumar
3.M.Suganya ... Respondents in
Crl.O.P.No.27285 of 2010 K.Murugesh rep. By his father/Power of Attorney Holder Dr.A.R.Kasilingam ... Respondent in Crl.O.P.No.27329 of 2010 Criminal Original Petitions filed under Section 482 Cr.P.C. to call for the records relating to C.C.No.303 of 2010 on the file of Judicial Magistrate No.I, Coimbatore and quash the same.
For Petitioners : Mr.V.Gopinath, Sr. Counsel
for Mr.R.Thiagarajan
in both the petitions
For Respondents : Mr.R.Shanmugasundaram, Sr. Counsel
for Mr.J.Sudhakaran
for R1 in Crl.O.P.No.27285 of 2010
and for sole respondent
in Crl.O.P.No.27329 of 2010
COMMON ORDER
"Can a power of attorney holder of an aggrieved person file a complaint in respect of matrimonial offences under Chapter XX of the Indian Penal Code?" This is one of the important questions to be dealt with in this case.
2.The petitioners in Crl.O.P.No.27285 of 2010 are the accused 1, 3 and 4 and the petitioners in Crl.O.P.No.27329 of 2010 (Respondents 2 and 3 in Crl.O.P.No.27285 of 2010) are the accused 2 and 5 in C.C.No.303 of 2010 on the file of the learned Judicial Magistrate No.I, Coimbatore. This case was instituted on a private complaint filed by the first respondent in Crl.O.P.No.27285 of 2010, who is the sole respondent in Crl.O.P.No.27329 of 2010. These petitions have been filed seeking to quash the case in C.C.No.303 of 2010. Since these two petitions relate to one and the same case, they were heard together and they are disposed of by means of this common order.
3.The complaint before the lower Court has been filed by one Mr.K.Murugesh through his power of attorney holder Dr.A.R.Kasilingam. The complainant Mr.Murugesh is the husband of the first accused. The marriage between them was solemnised on 22.08.1999 at Trichy. After the marriage, the complainant and the first accused had temporarily moved to United States of America and continued to reside there as husband and wife. Out of the wedlock, a female child was born on 30.09.2000. During the birth of the child, the first accused had to undergo a surgery, by which, her uterus was removed. Thus, she was unable to bear any more child. But the first accused was longing for a male child. The complainant tried to persuade her not to opt for a male child and to be happy with the female child as a lovable mother. But she was not satisfied with the same. Because of the insistence of the first accused, the complainant agreed to have a male child through a surrogate mother.
4.It is alleged that both the complainant and the first accused agreed to fix a surrogate mother in India for the purpose of having a male child. Under the guise of fixing a surrogate mother, it is alleged that the first accused came down to India on three different occasions. While she came down here, the A.T.M. Card relating to the account of the complainant was also taken by her. The complainant was under the belief that she had gone to India on all the three occasions genuinely for the purpose of fixing a surrogate mother and also to have a health check-up. But, unfortunately, later on, it came to light that while in Tamil Nadu, she had contacted the second accused, who was her erstwhile boyfriend at Coimbatore. It also came to light that she started living adulterous life with him. On one occasion, the first accused and the second accused were found together in an apartment and they were caught red handed by the father of the complainant. It is also stated that on one occasion, they had gone to Kovai Medical Centre and Hospital and Iswarya Fertility Centre, Kovai, wherein, they had undergone several biological and psychological tests for fertilisation so as to beget a child through a surrogate mother. The medical records furnished by Kovai Medical Centre and Hospital and Iswarya Fertility Centre, Coimbtaore revealed that the first and second accused got married. In the medical record, they had described themselves as husband and wife.
5.It is further alleged that it came to light that the first accused had gone for an illegal marriage with the second accused on 06.07.2008. The accused Nos.3 and 4 are the parents of the first accused and the fifth accused is the wife of the second accused. It is alleged that the accused 3 to 5 abetted the said bigamous marriage between the accused 1 and 2. It is also alleged in the compliant that the marriage ceremony undergone by the accused 1 and 2 is fraudulent and the same would not amount to a lawful marriage. Thus the said act also amounts to an offence under Section 496 I.P.C. It is further alleged that the accused 1 and 2 live an adulterous life at Coimbatore for a long time. According to the complaint, this makes out an offence under Section 497 I.P.C.
6.The act of the first accused in coming over to India on the assurance that she was going to India only for fixing a surrogate mother and for health check-up and later on indulging in bigamous marriage and adulterous life had caused serious harm to the mind and reputation of the complainant and thus, according to the complainant, the first accused has allegedly committed an offence punishable under Section 420 I.P.C. and the second accused had abetted the said offence along with the first accused.
7.On the above allegations, the above private complaint was filed alleging that the offences under Sections 420, 494, 496, 497 and 494 r/w 109 I.P.C. have been committed by these accused. On considering the allegations in the complaint and the documents, the learned Magistrate took cognizance by order dated 23.09.2010. The operative portion of the order of the learned Magistrate is as follows:
"13.. . . . . . . . .Therefore, the entire material produced before this Court would make out a prima facie case for adultery, cheating and bigamy. Therefore, there are materials to take this complaint on file under Sections 420, 496, 497 and 494 r/w 109 IPC. Thus, cognizance of offences are taken against A1 and A2 under Sections 420, 494, 496 and 497 IPC and against A3 to A5 under Section 109 IPC, issue summons against all accused for their appearance before this Court on 27.10.2010 (Wednesday)."
8.In these petitions, among other things, the following grounds are mainly focussed by the learned senior counsel appearing for the petitioners:
(i)There is no material at all to make out, even remotely, the offence punishable under Section 420 I.P.C.
(ii)In respect of the offences under Sections 494, 496, 497 and 494 r/w 109 I.P.C., the complaint should have been filed only by the aggrieved person. Here, in this case, the father of the aggrieved person has made the complaint, for which, there is no enabling provision either in Section 198 Cr.P.C. or elsewhere. Thus the complaint filed by the father, though he happens to be the general power of attorney of the aggrieved person, is barred by Section 198 Cr.P.C.
(iii)There is absolutely no material available on record to make out any offence such as the offence under Sections 494, 496 and 497 and 494 r/w 109 I.P.C. against any of the accused.
9.The learned senior counsel Mr.R.Shanmugasundaram appearing for the complainant would vehemently oppose these petitions. According to him, there are enough materials to make out an offence punishable under Section 420 I.P.C. so far as the accused 1 and 2 are concerned. According to him, the offence under Section 420 I.P.C. need not necessarily be relating to delivery of any property. He would contend, if the accused had played deception and induced a person to act upon such deception and if the person so induced and deceived, had acted upon, which ultimately resulted in harm, either to mind or reputation, then, that by itself is an offence under Section 420 I.P.C. as defined in Section 415 I.P.C.
10.Nextly, the learned senior counsel would submit that so far as the offence under Sections 494, 496 and 497 I.P.C. are concerned, there is no bar for a power of attorney holder to file a complaint on behalf of the aggrieved person. According to him, in this case, the aggrieved person has given a general power of attorney to his father to make a complaint, which is not barred at all under Section 198 Cr.P.C.
11.The learned senior counsel would further contend that so far as the offences under Sections 494 and 494 r/w 109 I.P.C. are concerned, there are abundant materials available and averments made in the complaint regarding the overt acts of each accused in the commission of the said crimes.
12.So far as the offence under Section 496 I.P.C. is concerned, the learned senior counsel would submit that the said marriage, which was undergone by the first and second accused, is unlawful and the marriage ceremony was fraudulent and so, the offence under Section 496 I.P.C. has also been made out against the accused 1 and 2.
13.So far as the offence under Section 497 I.P.C. is concerned, the learned senior counsel would submit that the accused 1 and 2 were caught red handed and they have also confessed to their guilt. Thus, there are enough materials in respect of the offence under Section 497 I.P.C. against the accused 1 and 2.
14.Now let me consider the rival submissions.
15.Before going into the rival contentions on factual aspects, let us have a cursory look into the definition of the term 'Cheating' as defined in Section 415 I.P.C., which reads as follows:
"415. Cheating: Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation: A dishonest concealment of facts is a deception within the meaning of this Section
16.This provision came to be considered and interpreted for more than 1 = centuries by various Courts including Federal Court as well as our Honourable Supreme Court. At this length of time and experience, there cannot be any difficulty in understanding the true import of Section 415 I.P.C. For a moment, as rightly pointed out by the learned senior counsel for the respondent/complainant, it is not always necessary that an offence of cheating should be committed only in respect of any property. Such cheating may be in respect of harm or damage caused to mind or reputation. But essentially two elements must be available in order to bring the act of the accused within the ambit of Section 415 I.P.C. First of all, as found in the opening words of Section 415 I.P.C., there should be deception played by an accused. Such deception need not necessarily be by means of expression of words. It may be by any act and even by conduct itself. Similarly, there has to be inducement and that inducement should be either fraudulent or dishonest, as defined in Sections 24 and 25 of I.P.C. The person, upon whom deception and fraud or dishonest inducement is played, should have acted upon the same and because of such acting upon, the said person should have suffered harm either to his mind or reputation. There should be materials available by way of averments in the complaint and documents to satisfy these requirements of Section 415 I.P.C.
17.In this case, it is the contention of the learned senior counsel for the petitioners that none of the above ingredients are available by way of allegations in the complaint or materials. But the learned senior counsel appearing for the respondent/complainant would submit that the act of the first accused in coming over to India after assuring the complainant that she was going to India only to fix a surrogate mother and for health check-up is both deception as well as inducement. He would further submit that but for the deception and inducement, the complainant would not have allowed her either to go over to India or to take the A.T.M. Card to spend money out of his account. Thus, according to the learned senior counsel for the respondent/complainant, the ingredients of Section 415 I.P.C. are satisfied from the materials available on record. But, I am not persuaded by the argument of the learned senior counsel appearing for the respondent/complainant. Here, a perusal of the complaint would go to show that there is absolutely nothing to show that the first accused deceived the complainant in any manner. Mere assurance that she was going to India only for fixing a surrogate mother and to have health check-up will not amount to deception at all. It is not the case that she had come to India with an evil design to develop intimacy with the second accused. According to the allegations, after returning to India, she later on developed illicit intimacy with the second accused. Absolutely, I find no averment in the complaint to say that he was ever deceived by the first accused. Nextly, there is also no averment for any kind of inducement on the part of the first accused. Thus the essential elements viz., deception and inducement are absent in the case. Apart from that, there is no averment that the complainant, on such inducement, fraud or deception, has suffered either damage or harm to his mind or reputation. Thus, I find that there are no materials at all available either by way of allegations in the complaint or by way of statements of witnesses or documents to satisfy the minimum requirement or Section 415 I.P.C. Therefore, this complaint deserves to be quashed so far as it relates to Section 420 I.P.C.
18.Now turning to the offence under Section 496 I.P.C., according to the complainant, this relates to the alleged marriage between the accused 1 and 2. Here, it is not the case that the second accused played fraud upon the first accused to undergo the marriage ceremony. There was no fraudulent intention to defraud the first accused by the second accused. So far as the offence under Section 496 I.P.C. is concerned, the aggrieved shall be the person with whom the marriage is celebrated by undergoing a ceremony either dishonestly or with fraudulent intention. Here, the first accused does not feel aggrieved. In terms of Section 198 Cr.P.C., the complainant cannot maintain the complaint as he is not the aggrieved person in respect of the alleged offence under Section 496 I.P.C. Therefore, the complaint is liable to be quashed so far as the offence under Section 496 I.P.C. is concerned.
19.Now turning to the offence under Sections 494, 494 r/w 109 and 497 I.P.C., they are all distinct offences, which even according to the complainant, occurred on two different occasions, at two different places, involving two different set of accused. Under Sections 218 and 219 Cr.P.C., only the offence of same kind committed by the same accused within a period of one year alone can be tried together. In this case, basically, offence under Sections 494 and 497 I.P.C. are not of the same kind. Therefore, the common complaint in respect of these two offences, when these two offences had not occurred in one and the same occurrence or in the same transaction, cannot be maintained. As we have already noticed, the learned Magistrate has taken cognizance of the offence under Section 497 I.P.C. both against A1 and A2. This order of the Magistrate, in my view, is illegal, according to Section 497 I.P.C., the wife is not punishable even as an abettor. An offence under Section 497 I.P.C. is an offence committed only by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit. The law punishes only the outsider who breaks into the matrimonial home and causes violation of sanctity of the matrimonial tie by developing illicit intimacy. Neither the husband can prosecute the wife nor the wife can prosecute the husband. (vide the judgment of the Honourable Supreme Court in V.Revathi Vs. Union of India reported in AIR 1988 SC 835). But, in this case, the learned Magistrate has taken cognizance of the offence under Section 497 I.P.C. against the first accused/wife also. This is, thus, illegal and so, it cannot be maintained.
20.So far as the outsider viz., the second accused is concerned, there can be prosecution under Section 497 I.P.C. But such prosecution can be by means of a separate private complaint as the first accused cannot be jointly tried with the second accused for this offence. Similarly, the accused 3 to 5 have nothing to do with the other offences except the offence under Section 494 r/w 109 I.P.C. They cannot be tried along with the accused 1 and 2. Thus, there is misjoinder of accused as well as charges which violates Sections 218, 219 and 223 Cr.P.C. On this ground, the complaint in respect of the offence under Sections 494, 494 r/w 109 and 497 I.P.C. is liable to be quashed. However, while quashing the compliant in respect of these offences, it is absolutely necessary for this Court to give liberty to the complainant to make fresh individual complaints in respect of these offences as against the accused, who are involved in those crimes.
21.Now, let us consider the last argument of the learned senior counsel that the complaint is liable to be quashed mainly on the ground that there is a bar under Section 198 Cr.P.C., for entertaining a complaint filed by the power of attorney holder. Though this argument appears to be very attractive, I am not persuaded by the same at all for more than one reason. To begin with, let us look into Section 198 Cr.P.C., which reads as follows:
"198. Prosecution for offences against marriage: (1) No Court shall take cognizance of all offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that-
(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf,
(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf,
(c) where the person aggrieved by an offence punishable under [section 494 or section 495] of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister [with the leave of the Court, by any other person related to her by blood, marriage or adoption].
(2) For the purpose of sub-section (1), no person other than the husband of the woman, shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the court, make a complaint on his behalf.
(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
(4) The authorization referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.
(5) Any document purporting to be such an authorization and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual inter-course by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.
(7) The provisions of this section apply to the abetment of, or attempt to commit an offence as they apply to the offence."
22.It is the contention of the learned senior counsel appearing for the petitioners that as per Section 198(1) Cr.P.C., it is only the aggrieved person, who can make a complaint in respect of the offences under Sections 494, 496 and 497 I.P.C.. The learned senior counsel would point out that as per the proviso(a) to Section 198(1) of the Code, if the aggrieved person happens to be a minor or is an idiot or lunatic or is from sickness or infirmity unable to make a complaint or is a woman, who, according to the local customs and manners, ought to to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. Similarly, under proviso(b) to Section 198(1) of the Code, if the aggrieved husband is serving in any of the Armed Forces, he can also authorise a person to file a compliant on his behalf. Under Section 198(2) of the Code, it is stated that no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Sections 498 of the Code. It is also provided that in the absence of the husband, some person, who had care of the woman on his behalf at the time when such offence was committed, may with the leave of the Court make a complaint on his behalf. Placing reliance on these provisions, the learned senior counsel would submit that there is no scope to entertain a complaint filed by the general power of attorney. For this proposition, the learned senior counsel relied on the judgment of this Court in A.Sambandam and another Vs. G.Natesan rep. By Power Agent S.Kuppuswami Padayachi (AIR 1966 Madras 183) wherein, in para 3, the learned single Judge has held as follows:
"3.The learned First Class Magistrate apparently granted permission in this case to file the complaint without notice to the accused. The order is very cryptic and reads "Permitted to file the complaint". Under S.199, Criminal P.C. no Court shall take cognizance of an offence under Ss.497 or 498 I.P.C. except upon a complaint made by the husband of the woman, or in his absence, made with the leave of the court by some person who had care of such woman on his behalf at the time when such offence was committed. It is not seriously contended that the circumstances which justify an agent to file a complaint have been satisfied in the present case. Natesan is stated to be in Malaya and the only reason given by him in the power of attorney is that because he is unable to proceed to India to file a complaint, he has authorised the power of attorney holder to file the complaint. Such a ground is not countenanced by S.199, Cri.P.C. In the circumstances, I have to hold that the complaint filed by the agent Kuppuswami Padayachi is incompetent and necessarily, the complaint filed by him has to be quashed."
23.The learned senior counsel for the petitioners has placed reliance on the judgment of the Honourable Supreme Court in Fr.Thomas Maniankerikalam and Another Vs. Thomas J.Padiyath and Another (2005 (3) CTC 567), wherein, in para 2, the Honourable Supreme Court has held as follows:
"2.By the impugned order, the High Court refused to quash prosecution of the appellants under Section 500 of the Indian Penal Code. The point involved in this case is as to whether the complainant was justified in authorising Power of Attorney Holder to file the complaint under proviso to Section 199(1) of the Code of Criminal Procedure, 1973, which lays down that where a complainant is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. In the present case, the complainant himself did not file the complaint because he was residing in Dubai, which was not a ground under the said proviso. As such the complainant was not justified in authorising the Power of Attorney Holder to file the complaint on his behalf. This being the position, we are of the view that the complaint, having not been presented in accordance with the provisions of Section 199(1) of the Code of Criminal Procedure, 1973, as such prosecution of the appellants is fit to be quashed."
24.In my considered opinion, the argument of the learned senior counsel for the petitioners is not agreeable to this Court. The judgments relied on by the learned senior counsel also cannot come to his rescue in any manner because, on facts, the present case is distinguishable.
25.A close reading of Section 198 (1) of the code would go to show that a complaint in respect of these specified offences can be made only by an aggrieved person. For some offences, the aggrieved person is the husband and for some offences it is the wife and for some other offences, it is both husband and wife. There can be no doubt that if the aggrieved person is not in a position to make a complaint in person due to any one of the reasons enumerated in Section 198 of the code, then, such aggrieved person can authorise some one else to file the complaint. If such authorisation is under Section 198(1)(a) of the Code, leave of the Court should be obtained for filing the complaint by the authorised person, whereas, if the authorisation is under Section 198 (1)(b) Cr.P.C., no such leave of the Court is required. In my understanding, if any such authorisation is given, then the person, in whose name the authorisation is given, becomes the complainant. The authorised person will be at liberty to conduct the case in his own name. Here, aggrieved person does not figure as a complainant at all and instead, it is only the authorised person, who figures as the complainant in the case. In other words, the authorised person is not acting as an agent of the aggrieved person and instead, though he is not an aggrieved person, he figures as the complainant simplicitor.
26.Now coming to the general power of attorney, here, there is a relationship of principal and agent. As and when the principal is not able act on his own in person, he gives power to some one else to act on his behalf. Here the agent acts only on behalf of the principal and under his directions. Such power is always revocable. The principal, after revoking the power, can appoint a new power agent. For any reason, if the principal dies, the agent cannot continue with the proceedings because the power dies with the principal. Thereafter, it is only for the legal representatives of the principal to prosecute the matter further. Similarly, if the power agent dies during the pendency of the proceedings, then the principal will have right either to prosecute the case by making his own appearance or by appointing a new agent on his behalf. Thus, the relationship between the principal and power agent is totally distinguishable from the relationship between the aggrieved person and the authorised person as referred to in Section 198 Cr.P.C. So far as Section 198 Cr.P.C. is concerned, it relates only to the relationship of the aggrieved person and the authorised person and the same has got nothing to do with the relationship between the principal and the agent.
27.In this regard, I may, now, refer to the judgments relied on by the learned senior counsel for the respondent/complainant. The locus standi of a power agent to file a complaint on behalf of his principal under Section 138 of the Negotiable Instruments Act came up for consideration before, a Division Bench of this Court in K.Gopalakrishnan Vs. Karunakaran rep. By the Power of Attorney Holder ((2006) 4 CTC 333). Presiding over the Bench, Honourable Mr.Justice P.Sathasivam (as he then was, presently, a Judge of the Supreme Court) had occasion to deal with the question elaborately, going deep into the question. His lordship had referred to a number of judgments of the Supreme Court as well as this Court. At last, His Lordship has held in para 17 of the judgment as follows:
"17.In view of the above discussion, we hold that,
(i)With regard to the first issue, the complaint even if not signed by the power of attorney on behalf of the complainant but singed in his own name, is maintainable and not bad in law because it is more procedural than substantive;
(ii)regarding the second issue, though the General Power of Attorney at initial stage fails to produce the deed of power of attorney or the affidavit of the complainant in proof of execution of power of attorney, the same can be rectified by producing the same at a subsequent stage of the proceedings as and when the validity of the power of attorney is questioned by the accused and the Court could then be called upon to decide the genuineness or the validity of the power of attorney; and
(iii)in respect of third issue, it is not required to record the sworn affidavit of the complainant also on a future date to enable the Court to exercise its discretion."
28.The learned senior counsel has relied on yet another judgment of the Honourable Supreme Court in Shankar Finance and Investments Vs. State of Andhra Pradesh and Others ((2008) 8 SCC 536). That was also a case of prosecution launched by the power of attorney holder on behalf of his principal. There also, the Honourable Supreme Court has held that a compliant filed by the power of attorney holder on behalf of the principal is certainly maintainable but he can only speak about the facts, which are within his personal knowledge and he cannot speak to the facts, which are in the exclusive knowledge of his principal.
29.From these two judgments, it is very clear that there is no bar in our Indian Criminal Jurisprudence for a power agent to file a private compliant on behalf of his principal. But the only restraint is that the power agent cannot speak to a fact of which he has got no knowledge. It is after all a very elementary principle of rule of evidence as envisaged in the Indian Evidence Act. Except the said raider, absolutely, there is no bar for a power agent to file a complaint. Per contra, if the contention of the petitioners that power agent cannot file a complaint representing his principal is accepted, then, it would only lead to absurdity. In the modern world, either on account of employment or for some other purpose, people go abroad or to a distant State in this country and settle down either permanently or temporarily. It is also possible that a foreigner may be an aggrieved person of a matrimonial offence who may not be in a position to visit India to file a complaint and to attend the future hearings. For such people it may be practically impossible to prefer complaint in person. They may not fall within Section 198(1)(a) of Cr.P.C. In such a situation, the offender cannot be allowed to go scot free. After all, as held by Honourable Justice P.Sathasivam, it is purely procedural and not substantive. Thus, we cannot accept an interpretation which will lead to absurdity. Therefore, I firmly hold that a power agent can file a complaint representing his principal. Thus, the argument of the learned senior counsel for the petitioners is rejected.
30.In this case, the complaint has not been filed by the father of the petitioner as an authorised person as referred to in Section 198 Cr.P.C. Instead, he has filed the complaint only as a power agent of his son, who is the aggrieved person. Therefore, I hold that this complaint filed by the power agent is maintainable.
31.However, as I have already held, this complaint is liable to be quashed for the reason that so far as Sections 420 and 496 I.P.C., are concerned, absolutely, there is no material even to make out a prima facie case. So far as the offences under Sections 494, 494 r/w 109 and 497 I.P.C. are concerned, as I have already stated, the complaint, being a common complaint, is not maintainable in view of Sections 218, 219 and 223 Cr.P.C. To put it in a nutshell, the entire complaint is therefore, liable to be quashed.
32.In the result, both the Criminal Original Petitions are allowed and the case in C.C.No.303 of 2010 on the file of the learned Judicial Magistrate No.I, Coimbatore is quashed. However, it is made clear that the quashment of this proceeding will not be a bar for the complainant to work out his remedy in respect of the offences under Sections 494 and 497 I.P.C. by filing independent complaints, provided he has got materials for the same. If any such independent private complaints are filed before the learned Magistrate having jurisdiction in respect of these offences, it is for the learned Magistrate to consider whether there are materials to take cognizance of these offences or not and then to proceed in accordance with law. Consequently, connected miscellaneous petitions are closed.
20.07.2012 Index:Yes Internet:Yes mmi S.NAGAMUTHU, J.
mmi To The Judicial Magistrate No.I, Coimbatore.
Dipak
(Querist) 26 February 2017
@Adv. Yogesh Kakade,
Sir, Thank you for reply. But, I think you are not getting my question properly. I would like to know you that I am fully agreed that power of attorney holder can prosecute the divorce petition. But, My question is related to permission. My question was:- whether power of attorney holder has to seek permission of family court to appear on behalf of the original petitioner? Under which law or section in civil procedure code?
Adv. Yogen Kakade
(Expert) 27 February 2017
Yes you have to ask for the permission of the court and it is the discretion of the court to allow you. And read the judgement carefully, you shall get your answer.
Guest
(Expert) 27 February 2017
Recently Bombay high court made rules for appellate side in person as well as power of attorney holder etc. In my opinion similarly they may have done in civil manual . Now I feel you make proper format according to it.
Synopsis
1. Reason why you are appearing in person /what is specific reason some one has given poa to you
2. Why concern person does not want to take help of state or dist legal cell
3. Undertaking that you will not use unparliamentary words and follow procedure rules etc
4. That application requires approval of judge
Generally many who take part in person are actually law graduate but they may have taken some job and hence enrollment bar council don't give . But without study it's difficult
Guest
(Expert) 27 February 2017
Now to test competency of person I give you test, search rules regulations for in person appearance in Bombay high court appellate side . Actually I think I read before taking part now in person you need to satisfy registrar of high court about your competency same you have to approve from judge in family court
