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TMI Blog2022 (6) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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. - Hon'ble Judges Maheshan Nagaprasanna, J. For the Appellant : Ajesh Kumar S., Advocate For the Respondents : K.P. Yashodha, HCGP, Vivek Reddy, Sr. Advocate and K.G. Kamath, Advocate ORDER Maheshan Nagaprasanna, J. 1. The petitioners being aggrieved by the proceedings in Crime No. 216 of 2021 registered for offences punishable under Sections 406, 419, 420, 380, 384, 389, 506 read with Section 34 of the IPC and pending before the IV Additional Chief Metropolitan Magistrate, Bangalore have approached this Court under Articles 226 and 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code. The petitioners who are daught ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment appearing for respondents 1 to 3 and Sri Vivek Reddy, learned senior counsel appearing for the 5th respondent/complainant. 5. The learned counsel for the petitioners submits that a pure matrimonial dispute is sought to be given a colour of crime and also the dispute is purely civil in nature. The allegations made in the complaint, even if taken to be true, would not make out an offence against the petitioners. The allegation against the petitioners is that they have taken away the jewels belonging to the complainant and some money has been transferred from the account of the complainant to the account of the 1st petitioner. These are during subsistence of marriage and, therefore, no criminality can be attached to any of the allegations made in the complaint. He would submit that there is no misappropriation of any funds as the property is registered in the names of both the 1st petitioner and the complainant. The learned counsel would further submit that none of the ingredients of Sections 406 and 420 of the IPC can even be made in the case at hand as there is no inducement for purchase of property by the 1st petitioner on the complainant and its dishonest misappropriation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of an accused? Since the issue with regard to whether the writ petition is maintainable or otherwise forms a threshold bar for entertaining the petition or considering any other submission, I deem it appropriate to notice and consider the said point first, as if the power of this Court is uninvokable, the petition will have to be dismissed as not maintainable. 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant case, there is nothing, on the record, that Amit Ahuja, petitioner, is suffering from any disability, recognized by the provisions of law. He is an accused, in the aforesaid complaint. It is he, who is aggrieved, against the complaint and the summoning order. It is he, who can challenge the same, on any ground which may be available to him, under the provisions of law. If, in criminal cases, until and unless, a person aggrieved, suffers from some disability, recognized by law, a stranger or some other person, is allowed, to fight the proxy war, then the very purpose of criminal justice system, shall be defeated. In that event, the Courts, would be mushroomed, by public interest litigants. In this view of the matter, the present petition, under Section 482 Cr.P.C., filed by the petitioner, through his attorney, is not maintainable. On this ground alone, the same is liable to be dismissed. 8. In T.C. Mathai and another Vs. The District Sessions Judge, Thiruvananthapuram, Kerala, MANU/SC/0224/1999 : SC 1385; in para 15, it is observed as under:- 15. Section 2 of the Power of Attorney Act cannot override the specific provision of a statute which requires that a particular act sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds as follows: 6. During the course of hearing, it is not disputed by learned counsel that the petitioner is still residing abroad and the petition has been filed through his mother, namely, Sukhwinder Kaur (Special power of attorney). 7. When confronted with the maintainability of the petition, learned counsel has submitted that since the mother of the petitioner was also an accused, therefore, she is competent to represent him as his special power of attorney to pursue his case relating to the same FIR. .............................. 13. Though the above decision of the Hon'ble Supreme Court was not brought to the notice of this Court in Mangal Dass Gautam's case (supra), however, the above view was further followed by Bombay High Court in Pravin Niwritti Sawant V. Nisha Pravin Sawant and another , MANU/MH/1523/2007 : 2007 (4) RCR (Criminal) 841, and by Kerala High Court in Naveed Akhthar v. State of Kerala . 14. At this juncture, the analysis of the facts of this case reveal that the petitioner voluntarily disengaged himself with the trial proceedings, who left the country without seeking any permission from the trial Court, therefore, this petition filed through the Spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recognized agent to conduct proceedings in court in the same category as a vakalat given to a legal practitioner, though latter may be described as a power of attorney is confined only to pleaders, i.e., those who have a right to plead in courts. 7. The dictum laid down therein is that without the explicit permission of the court, a power of attorney cannot plead or can have audience in the court. This position is followed in T.C Mathai v. District Sessions Judge, Thiruvananthapuram [(1999) 3 SCC 614], wherein the Apex Court approving the dictum laid in the above referred case, held that: The aforesaid observations, though stated sixty years ago, would represent the correct legal position even now. Be that as it may, an agent cannot become a pleader for the party in criminal proceedings, unless the party secures permission from the court to appoint him to act in such proceedings. The respondent-couple have not even moved for such a permission and hence no occasion has arisen so far to consider that aspect. 8. In the case in hand, it is the admitted case of the petitioner that he is the power of attorney holder and moved on behalf of the accused. There is no petition for permission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresented by a power of attorney holder and thus, maintain the subject petition. 14. Point No. (ii): Whether the writ petition suffers from suppression of material facts entailing dismissal of the petition? A link in the chain of events qua their dates is required to be noticed while answering this point. The petitioners contend that on 23-07-2021 they flew back to London from Kolkata and returned to Kolkata on 14-11-2021. By then, crime in Crime No. 216 of 2021 had been registered by the Police at Bangalore on a complaint made by the 5th respondent/complainant. The petitioners, on the strength of the FIR, were apprehended on 19.11.2021 and produced before the competent Court at Kolkata. A transit bail was granted for travelling to Bangalore along with the police. Upon their production before the competent Court at Bangalore, they were released on bail on the condition that they surrender before the IV Additional Chief Metropolitan Magistrate within next 10 days and accordingly, they surrendered on 13-12-2021. Thereafter, the petitioners filed Criminal Miscellaneous No. 1158 of 2021 seeking anticipatory bail under Section 438 of the Cr.P.C. The Court having observed that the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter. 34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R. v. Kensington Income Tax Commrs. [(1917) 1 KB 486: 86 LJKB 257: 116 LT 136 (CA)], in the following words: [I]t has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts--facts, not law. He must not misstate the law if he can help it--the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside, any action which it has taken on the faith of the impe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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