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2022 (6) TMI 1463 - HC - Indian LawsMaintainability of petition filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C. at the hands of a power of attorney holder of an accused - suppression of material facts or not - offences alleged meet their ingredients or not. Whether the subject writ petition filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C. is maintainable at the hands of a power of attorney holder of an accused? - HELD THAT - It is not in dispute that the petitioners are presently residing at United Kingdom and the petition is presented by one Mr. Gautam Giri on the strength of a power of attorney executed by the petitioners on 14-12-2021 at Bangalore. The power of attorney appended to the petition is executed at Bangalore, but signed by the executants before the Notary at London. There is no averment in the entire petition that the said power of attorney holder is aware of the facts of the case. There being no averment to the effect that the power of attorney holder has full knowledge of what is being filed and the reason for presenting the petition by the said power of attorney holder, notwithstanding the fact that it is filed invoking writ jurisdiction of this Court as an amalgam to Section 482 of the Cr.P.C., the writ petition would not become maintainable. The Constitutional Courts have consistently taken a view that the petition under Section 482 of the Cr.P.C. by a power of attorney holder is not maintainable. The High Court of Delhi in a Judgment rendered in the case of AMRINDER SINGH v. STATE OF NCT OF DELHI 2022 (1) TMI 1421 - DELHI HIGH COURT addresses the very issue as it was argued therein that the petition filed under Article 227 read with Section 482 of the Cr.P.C. was not maintainable. The High Court of Delhi following the judgment of the Apex Court in the case of T.C. MATHAI AND ANOTHER v. THE DISTRICT SESSIONS JUDGE, THIRUVANANTHAPURAM 1999 (3) TMI 635 - SUPREME COURT , clearly holds that the petition filed through Special Power of Attorney Holder is per se not maintainable. Therefore, no permission can be granted to the power of attorney holder to present the petition under Article 227 of the Constitution of India or otherwise. The challenge to the proceedings seeking annulment of FIR was also held not maintainable. On a coalesce of the judgment so rendered by the Constitutional Courts, what can be unmistakably gathered is that the power of attorney holder of an accused cannot maintain a petition be it under Article 226 or 227 of the Constitution of India read with Section 482 of the Cr.P.C. or Criminal Petition under Section 482 Cr.P.C. Therefore, the present petition filed by the power of attorney holder of the accused, without seeking any permission at the hands of this Court, and without even narrating in the petition that he is personally aware of the facts of the case, the writ petition filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C. is per se not maintainable, as the accused cannot be represented by a power of attorney holder and thus, maintain the subject petition. Whether the writ petition suffers from suppression of material facts entailing dismissal of the petition? - HELD THAT - The petitioner No. 1 has filed an affidavit of declaration which is dated 29-03-2022 for the first time stating that in view of travel restrictions due to COVID-19 the power of attorney was handed over to a family friend Mr. Gautam Giri and has also sought to defend the allegations made in the complaint. But there is no whisper about the afore-narrated facts and events that have been suppressed by the petitioners while filing the present petition. Therefore, there can be no doubt that the petitioners are guilty of approaching this Court with unclean hands and such petitions should be thrown to the winds by imposition of exemplary costs. If there is no candid disclosure of relevant and material facts or the petitioners are guilty of misleading the Court, the petition is to be dismissed at the threshold without considering the merit of the claim. The case at hand is to meet its dismissal with imposition of exemplary costs, as the petitioners have invoked the jurisdiction of this Court both under Articles 226 and 227 of the Constitution of India and Section 482 of the Cr.P.C. with unclean hands. The first and second question having been answered in the negative against the petitioners, the other point with regard to merits of the matter need not be gone into, as both the points act as a threshold bar for entertaining the petition and the doors of this Court cannot be considered to be open or even ajar to the petitioners, but they are closed. Therefore, third question is not answered. Writ Petition is dismissed with exemplary cost of Rs. 1,00,000/- to be paid by the petitioners to the High Court Legal Services Authority, Bengaluru within four weeks from the date of receipt of a copy of this Court and file an acknowledgment to that effect before the Registry of this Court.
Issues Involved:
1. Maintainability of the writ petition filed by a power of attorney holder. 2. Suppression of material facts by the petitioners. 3. Whether the alleged offences meet their ingredients. Detailed Analysis: 1. Maintainability of the writ petition filed by a power of attorney holder: The court first addressed whether the writ petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C. is maintainable when filed by a power of attorney holder. The petitioners, residing in the United Kingdom, had their petition presented by a power of attorney holder. The court noted that there was no averment in the petition indicating that the power of attorney holder was aware of the facts of the case. Citing precedents, the court emphasized that petitions under Section 482 of the Cr.P.C. by a power of attorney holder are not maintainable. The court referred to judgments from the Delhi High Court, Punjab and Haryana High Court, and Kerala High Court, which consistently held that a power of attorney holder cannot maintain such petitions. The court concluded that the present petition, filed by a power of attorney holder without seeking permission or demonstrating personal knowledge of the case facts, is not maintainable. 2. Suppression of material facts by the petitioners: The court examined the sequence of events and noted significant omissions in the petition. The petitioners failed to disclose their arrest, the grant of transit bail, and subsequent legal proceedings in Kolkata and Bangalore. This suppression of material facts was not disputed by the petitioners. The court emphasized the importance of full and fair disclosure in petitions invoking extraordinary jurisdiction under Articles 226 and 227 of the Constitution. Citing the Supreme Court's judgment in Prestige Lights Ltd. v. State Bank of India, the court underscored that suppression of material facts warrants dismissal of the petition with exemplary costs. The court found the petitioners guilty of approaching the court with unclean hands and decided to dismiss the petition on this ground. 3. Whether the alleged offences meet their ingredients: Given the negative findings on the first two points, the court deemed it unnecessary to address the merits of the allegations. The court noted that the maintainability issue and suppression of facts acted as a threshold bar, precluding further consideration of the petition's merits. Conclusion: The court dismissed the writ petition with exemplary costs of Rs. 1,00,000/- to be paid to the High Court Legal Services Authority, Bengaluru, within four weeks. The petitioners were instructed to file an acknowledgment of the payment before the Registry of the court.
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