Haji Iqbal @ Bala vs State Of U.P. And Another
2023 Latest Caselaw 24577 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Reserved on:  02.08.2023
 
                                                                                 Delivered on: 12.09.2023
 
Neutral Citation No. - 2023:AHC:176773
 
Court No. - 78
 

 
Case :- APPLICATION U/S 482 No. - 22140 of 2023
 
Applicant :- Haji Iqbal @ Bala
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Indra Bhan Yadav,Sudhir Kumar Agarwal
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.

1. Heard learned counsel for the applicant and Sri Manish Goyal, learned Additional Advocate General, assisted by Sri Rupam Chaubey, learned A.G.A. for the State.

2. This application under section 482 Cr.P.C. has been preferred by one Tanseef, on behalf of accused Haji Iqbal @ Bala, on the basis of power attorney, against the order dated 13.04.2023, passed by the learned Special Judge (M.P./M.L.A.)/ Additional District & Sessions Judge, Court No. 1, Saharanpur in Case Crime No. 83 of 2022 under Section 2/3 Gangster Act, Police Station-Mirzapur, District-Saharanpur, whereby, on the application of the investigating officer, process under Section 82 Cr.P.C. has been issued against the applicant/accused Haji Iqbal @ Bala.

3. Perusal of record shows that the first information report of this case was lodged on 09.04.2022 under Section 2/3 Gangster Act against applicant/accused Haji Iqbal @ Bala and six others, alleging that the applicant/accused is running a gang and co-accused persons are members of the said gang and that they, acting singly or collectively, indulge in commission of offences like threat, criminal intimidation, illegal mining, smuggling of forest produce, illegal possession over property and other anti-social activities, for gaining undue temporal, pecuniary, material gains. After investigation, charge-sheet has been submitted against six co-accused persons but investigation against applicant/accused is pending, as he is absconding. It appears that as the applicant/accused was absconding thus, non-bailable warrants were issued against the applicant/accused Haji Iqbal @ Bala but the same could not be executed. Thereafter, on the application of the investigating officer, the Court of Special Judge (M.P./M.L.A.)/ Additional District & Sessions Judge, Court No. 1, Saharanpur has issued process under Section 82 Cr.P.C. against the applicant/accused vide order dated 13.04.2023, which is being impugned by the applicant/accused Haji Iqbal @ Bala through his power of attorney holder Tanseef.

4. Learned counsel for the applicant has raised several contentions but the learned Additional Advocate General raised a preliminary objection that the accused Haji Iqbal @ Bala is continuously absconding and this application on his behalf, by his power of attorney holder, is not maintainable. In the affidavit filed support of the application under section 482 CrPC, except a vague averment that the accused Haji Iqbal @ Bala is residing out of country, no other reason has been shown that why the accused Haji Iqbal @ Bala can not file the petition.

5. Learned counsel for the accused-applicant submits that as the accused Haji Iqbal @ Bala is residing out of country, thus, his duly appointed attorney can file the application under section 482 CrPC. It was pointed out that the accused Haji Iqbal @ Bala has duly executed a special power of attorney in favour of Tanseef and thus, this application by the attorney holder is maintainable. The copy of power of attorney has been annexed as annexure -13.

6. I have considered the submissions and perused the record.

7. The alleged power of attorney dated 14.04.2022, executed by the accused Haji Iqbal @ Bala in favour of Tanseef, (on stamp paper of Rs. 10), reads as under:

"मुख्तारनामा खास

हम कि 1. मोo इकबाल पुत्र अब्दुल वहीद 2. महमूद अली पुत्र अब्दुल वहीद 3. मोo अफजल पुत्र मोo इकबाल व 4. मोo अलीशान पुत्र मोo इकबाल निवासीगण-ग्राम मिर्जापुर पोल, थाना मिर्जापुर, जिला सहारनपुर के हैं।

जो की हमारे जिला सत्र न्यायालय, माननीय उच्च न्यायालय, माननीय उच्चतम न्यायालय (सुप्रीम कोर्ट), दिल्ली में कई मुकदमें लगे हुए हैं। हम अपने कारोबार में अक्सर व्यस्त रहते हैं, जिस कारण जिला सत्र न्यायालय, माननीय उच्च न्यायालय व माननीय उच्चतम न्यायालय (सुप्रीम कोर्ट), दिल्ली आ जा नही सकते हैं इसलिए हम अपने मुकदमों की पैरवी के लिए श्री तनसीफ पुत्र मुस्तफा निवासी-मकान न. 525, इस्लाम नगर, जिला सहारनपुर को मुकदमें की पैरवी करने के लिए अपना मुख्तार ख़ास/पैरोकार नियुक्त करते हैं तथा उसे अधिकार देते हैं कि वह हमारे मुकदमों में हमारी ओर से शपथपत्र दाखिल करे या वकालतनामे दाखिल करे, अधिवक्ता नियुक्त करे या प्रतिभू प्रार्थना पत्र किसी भी सक्षम न्यायालय में दाखिल करे और उसकी पैरवी करे अथवा जो भी आवश्यक कार्यवाही हो हमारी ओर से करे, उनके द्वारा मुकदमों में किया गया प्रत्येक कार्य हमारे द्वारा किया गया माना जायेगा।

अत: यह मुख्तार नामा खास लिख दिया ताकि सनद रहे और वक्त जरूरत पर काम आवे।

इति।

लेख तिथि 14.04.2022"

8. It may be seen that in the power of attorney there is no such version that the accused Haji Iqbal @ Bala is out of country, due to which he is unable to file his case, rather the version in power of attorney is that the accused Haji Iqbal @ Bala and other executors of the power of attorney remain busy in their business and due to that reason they can not do 'pairvi' in their cases. Even it has also not been clarified in this application under section 482 Cr.P.C. that when the accused Haji Iqbal @ Bala has left India and in which country he is residing. Merely a vague statement has been made that the accused Haji Iqbal @ Bala is out of country and thus, this case is being filed by his attorney. Here it would be pertinent to mention that in this application, the order passed under 82 Cr.P.C. against the accused Haji Iqbal @ Bala is being challenged.

9. In view of aforesaid, it appears that the grounds on which the instant application is being filed by the attorney holder of the accused Haji Iqbal @ Bala, are not sustainable and it appears that the accused Haji Iqbal @ Bala is playing hide and seek. It is also apparent that neither there is any witness on the alleged power of attorney nor it has been executed on the stamp of prescribed amount.

10. In such facts and circumstances, the question arises whether this application filed by the accused Haji Iqbal @ Bala through his special power of attorney holder is maintainable?

11. In case of T.C. Mathai and another Vs. The District & Sessions Judge, Thiruvananthapuram, Kerala, AIR 1999 SC 1385; in para 15, it was held 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 should be done by a party in person. When the Code requires the appearance of an accused in a court it is no compliance with it if a power of attorney holder appears for him. It is a different thing that a party can be permitted to appear through counsel. Chapter XVI of the Code empowers the Magistrate to issue summons or warrant for the appearance of the accused. Section 205 of the Code empowers the Magistrate to dispense with "the personal attendance of accused, and permit him to appear by his pleader" if he sees reasons to do so. Section 273 of the Code speaks of the powers of the court to record evidence in the presence of the pleader of the accused, in cases when personal attendance of the accused is dispensed with. But in no case can the appearance of the accused be made through a power of attorney holder. So the contention of the appellant based on the instrument of power of attorney is of no avail in this case."

12. The issue whether in such facts and circumstances, the application under section 482 Cr.P.C. is maintainable at the hands of a power of attorney holder of an accused, has also been considered by the Hon'ble Karnataka High in case of Samantha Christina Delfina Willis Vs. State of Karnataka and Ors. (W.P. No. 24602 of 2021), decided on 01.06.2022, and it was held that such petition at the hands of attorney holder is not maintainable.

13. The High Court of Punjab and Haryana in Sarabjit Singh Vs. State of Punjab and Others (CRM-M No. 26957 of 2021, decided on 16.07.2021), considering the fact whether the power of attorney holder could not maintain the petition held as under:

"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 CRM-M No.26957 of 2021 decided on 16-07-2021 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/MH1523/2007 : 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 Special power of attorney holder is not maintainable. If such a procedure is introduced, then it would not only encourage the accused persons to seek this kind of permissions to avoid their personal presence before the trial Courts or any other Court, as required by law but would also put extra burden upon the Courts and it may further cause delay in conclusion of the criminal proceedings, thereby defeating the aim and object of the penal laws."

14. The High Court of Delhi in a Judgment rendered in the case of Amrinder Singh V State of NCT of Delhi (Crl M.C. 1571 of 2021), decided on 05.01.2022, has occasion to consider the same issue. It was argued therein that the petition filed under Article 227 read with Section 482 of the Cr.P.C. was not maintainable. The court held that the petition under Section 482 Cr.P.C., filed by the petitioner, through his attorney, is not maintainable. The Court following the judgment of the Apex Court in the case of T.C. Mathai and another Vs. The District & Sessions Judge (supra), has held:

"6. It is vehemently argued by the Ld. APP that the present petition under article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure is not maintainable as the same has been filed through S.P.A. holder and the present application and petition are liable to be dismissed.

7. In Amit Ahuja Vs. Gian Parkash Bhambri, MANU/PHYSICAL HEARING/1159/2010: 2010(3) R.C.R.(Criminal) 586; it has been observed as under:-

"9. The plain reading of the ratio of law, laid down, in the aforesaid cases, clearly goes to reveal, that it is only the accused person, against whom, a criminal case, has been registered or a criminal complaint, has been filed, can file a petition, under Section 482 Cr.P.C., in the High Court, for quashing the complaint, the summoning order, and the subsequent proceedings, and no third person, Crl.M.C.1571 of 2021 decided on 04-01-2022 AIR 1999 SC 1385 can fight a proxy war, on his behalf, under the garb of public interest litigant. The aggrieved party, which is affected by an order, is required to seek redress of its grievance, by questioning the legal validity or correctness of the same. It is another thing, if the aggrieved party, is suffering from some disability i.e. unless such party is a minor, an insane person, or is suffering from any other disability, which, in law, is recognized as sufficient to permit any other person e.g. next friend, to move the Court, on his behalf. On behalf of minor, or insane person, a guardian or a next friend, initiates proceedings, so as to challenge the legality and validity of the order, passed against him, to seek redressal of the grievance, as under law, such a person having disability, cannot be said to be competent, to file a petition, except through next friend or guardian. In the instant 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."

15. In case of Naveed Akthar Sait Vs. State of Kerala 2016 SCC Online KER 13587, the power of attorney holder has moved the case on behalf of the accused and there was no petition for permission to act on behalf of the principal, the Hon'ble Kerala High Court observed that an agent could not appoint an Advocate and therefore, the very petition filed by a power of attorney holder was not maintainable and the Court hold:

"6. Thus, what comes out is that as per the said power of attorney a petition is filed before this court on behalf of the original accused in the case referred above. The decision in M. Krishnammal v. T. Balasubramania Pillai (AIR 1937 Mad 937), which was decided by the Madras High Court, that also about 70 years back is the land mark decision in this regard. As per the said decision, the legal position regarding the power that can be delegated even in a case is dealt with. The court held:

2016 SCC Online KER 13587 "An agent with a power of attorney to appear and conduct judicial proceedings, but who has not been so authorised by the High Court, has no right of audience on behalf of the principal, either in the appellate or original side of the High Court --- There is no warrant whatever for putting a power of attorney given to a 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 o plead in courts."

16. Thus, it clearly emerges that in such matters, the petition filed on behalf of the accused by his power of attorney holder would not be maintainable. As stated above, in the instant matter not only the power of attorney is defective but it is contradictory with the averment made in the affidavit filed in support of application under Section 482 Cr.P.C. The only reason shown in the application under Section 482 Cr.P.C. regarding absence of accused Haji Iqbal @ Bala, is that he is out of country, whereas, in power of attorney, it was mentioned that accused and other executors of power of attorney remain busy in their business and thus, they cannot do 'pairvi' of their cases. There is no such version in the power of attorney that applicant Haji Iqbal @ Bala is out of country. It has also not been specified that when the accused Haji Iqbal @ Bala left India and in which country he is residing. Thus, it is apparent that material facts have been concealed and this application has not been filed with clean hands. Even no permission is being sought by the alleged Tanseef to file this application under Section 482 Cr.P.C. on behalf of accused Haji Iqbal @ Bala. As stated above in this application, order passed by the Court below under Section 82 Cr.P.C. against Haji Iqbal @ Bala, is being challenged. In view of these facts and circumstances, the instant application under section 482 Cr.P.C. filed on behalf the accused by the power of attorney holder, is not maintainable. Thus, the instant application under section 482 Cr.P.C. is liable to be dismissed without considering the matter on merits.

17. The application under section 482 Cr.P.C. is dismissed as not maintainable.

Order Date :- 12.9.2023

Suraj