Paul Varghese vs State Of Kerala
2021 Latest Caselaw 21067 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
               THE HONOURABLE MR. JUSTICE K.HARIPAL
    WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
                      CRL.MC NO. 3788 OF 2021
 CRL. M. P. NO. 642/2021 IN S.T. NO. 3557/2016 OF JUDICIAL FIRST
          CLASS MAGISTRATE - I, NORTH PARAVUR, ERNAKULAM
PETITIONER/ACCUSED:

          PAUL VARGHESE
          AGED 28 YEARS
          S/O. VARGHESE,
          AIROOKKARAN HOUSE,
          NEAR MANJALI BRIDGE,
          NORTH PARAVUR.

          BY ADV. M.VIVEK


RESPONDENT/COMPLAINANT:

          STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA,
          ERNAKULAM.



          BY SRI. RENJITH T.R., SENIOR PUBLIC PROSECUTOR



     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
13.09.2021, THE COURT ON 20.10.2021 PASSED THE FOLLOWING:
 Crl.M.C.No.3788 OF 2021            2




                                 ORDER

Can a Magistrate who had issued summons in a proceedings

before him is justified to insist filing of vakalath by the accused, is

the short question posed for consideration in this Crl.M.C.

Petitioner is the accused in S.T. No. 3557/2016 pending before the

Judicial First Class Magistrate - I, North Paravur. He faces

allegations under Sections 279 of the Indian Penal Code and

Section 185 of the Motor Vehicles Act. The allegation is that on

12.10.2016, at 5.45 P.M., the Sub Inspector of police, North

Paravur police station found the petitioner riding a motor cycle

bearing registration No. KL-07-AC-1437 in a rash and negligent

manner under the influence of alcohol. He was intercepted,

subjected to breath analyzer test and found having drunk and thus

after registering the crime, he was released on bail. Thereafter,

summons was issued by the learned Magistrate pursuant to which a

counsel entered appearance and filed a memo of appearance.

Through the counsel the petitioner wanted to plead guilty. But by

the impugned Annexure 2 order dated 08.07.2021, the learned

Magistrate dismissed the application, for the simple reason that no

vakalath is filed, that instead of filing vakalath, a memo of

appearance alone was filed; on that ground the application was

dismissed. The correctness of this finding is challenged in this

Crl.M.C. filed under Section 482 of the Code of Criminal

Procedure.

2. I heard the learned counsel for the petitioner and also

the learned Senior Public Prosecutor.

3. The learned counsel has submitted that he is entitled to

plead guilty by filing a memo of appearance as provided under

Rule 31 of the Criminal Rules of Practice, that the learned

Magistrate cannot insist him to file a vakalath, that there is no

specific provision directing to file vakalath and therefore, Annexure

2 order is illegal.

4. There are two aspects in this case. Firstly, whether the

Magistrate was justified in insisting the petitioner to file vakalath

instead of filing memo of appearance as done in this case.

Secondly, whether the Magistrate is justified in allowing the

petitioner to plead guilty in absentia.

5. Considering the first aspect, I have no doubt that the

learned Magistrate has gone wrong in insisting filing of vakalath.

As rightly pointed out by the learned counsel for the petitioner,

there is no law or statutory provision insisting him to file a

vakalath. Rule 31 of the Criminal Rules of Practice and Chapter V

of the Criminal Rules of Practice deals with appointment of

pleaders. Rule 31 of the Criminal Rules of Practice states as

follows:-

31. Pleader to file Memo of Appearance.- Every pleader as defined in Clause (q) of Section 2 of the Code of Criminal Procedure, 1973, other than a Public Prosecutor, appearing either on behalf of the complainant or the accused, shall file a memorandum of appearance containing the following particulars:

i) A declaration that he is duly instructed by or on behalf of the party whom he claims to represent;

                ii)    Number and year of proceedings;
                iii)   Name of the parties to the proceedings;
                iv)    Name and position in the proceedings of the
                       party for whom he appears;
                v)     Roll Number;
                vi)    Address of the Advocate.

6. There are provisions like Rule 33, Rule 35 etc. in the

Criminal Rules of Practice which insist filing of vakalath. Rule 33

provides that every pleader appearing on behalf of an accused who

has been exempted from personal appearance shall file a vakkalath

as prescribed by Rule 32.

7. Similarly, Rule 35 provides that no pleader shall be

entitled to take delivery of property or receive money or documents

on behalf of his client unless specifically authorised to do so by the

vakkalath or the power of attorney.

8. Here mention is to be made about Rule 36 where

appointment of a pleader to continue for getting copies of judgment

etc., which are not relevant for this case. So going by Rule 31, it is

evident that unless exemption for appearance before court is

allowed, there is no logic in insisting filing of a vakalath.

Therefore, on prima facie consideration the insistence to file a

vakalath by the Magistrate, cannot be approved.

9. In this connection, a decision of this Court in Joseph v.

State of Kerala [1989 (1) KLT 574] has been placed reliance

where it has been succinctly held that on filing of memorandum of

appearance, the pleader is entitled to appear and act on behalf of the

accused in any criminal case. This has been reiterated by this Court

in State of Kerala v. Vishnu [2006 (1) KLT 445] where it is held

that a pleader can appear and plead for a party before criminal court

by filing memorandum of appearance in accordance with Rule 31

of the Criminal Rules of Practice and need not file a vakalath. That

means, that part of the order of the learned Magistrate cannot be

approved.

10. Closely related is the consideration whether the court is

justified in allowing the petitioner to plead guilty by filing of

memorandum of appearance. In fact, I cannot find fault with the

learned Magistrate for insisting the filing of vakalath for pleading

guilty. Here, the offences alleged are under Section 279 of the

Indian Penal Code and Section 185 of the Motor Vehicles Act.

There substantive sentence of imprisonment for six months and fine

is attached against both the penal provisions. Therefore, the

question is without granting exemption whether the petitioner is

justified in pleading guilty. In fact, the petitioner has not moved any

application for exemption under Section 205 of the Cr.P.C. That is

evident from the statement of facts in the case. The petitioner is

currently working in Dubai, he has not filed any vakalath nor has

sought exemption from appearing before court. In fact granting

exemption by a Magistrate to an accused from attending personally

on the date of posting is a matter of discretion vested in the court.

Here, no application has been filed under Section 205 seeking

permanent exemption, so that, that may be the guiding reason

which prompted the learned Magistrate to reject the application.

But that cannot be inferred from the order under challenge.

11. The prayer in the Crl.M.C. is to direct the court below

to allow the petitioner to plead guilty to the offences alleged in

Annexure 1 charge sheet through his pleader without filing

vakalath, in the interest of justice. This relief cannot be granted. If

this Court issues such a blanket direction that would amount to

interference with the discretion expected to be exercised by the

learned Magistrate in the matter of granting exemption to the

accused. As I noticed earlier, the offences are not that light. It is

alleged that the petitioner had driven a vehicle through public road

in a drunken condition; he was subjected to alcohol test and found

drunk. For such a person, if pleaded guilty, which penalty should be

imposed, whether it should be confined to mere payment of fine or

should be given substantive sentence etc., are matters of discretion

to be exercised by the Magistrate on which this Court cannot have

any say, at this stage. Therefore, the learned Magistrate is justified

in not granting permission. But from the order, it cannot be inferred

that Rule 33 of the Criminal Rules of Practice was in mind, when

the order was passed. As noticed earlier, Rule 33 comes into play

only if he is granted exemption from personal appearance. Here

that is not done.

12. Moreover, a summons under Section 204 of the Cr.P.C.

is for the appearance of the accused. The golden rule is that a

criminal proceedings should be conducted in the presence of the

accused. Section 205 of the Cr.P.C. is an exception. That can be

granted only on application and also on proper consideration. Here

the petitioner wants to plead guilty, at the same time, he has not

moved any application for permanent exemption. That cannot be

accepted. Therefore, if the learned Magistrate is insisting filing of

a vakalath under Rule 33 of the Criminal Rules of Practice, it

cannot be found fault with.

13. To sum up, as a general rule, ordinarily, a memo of

appearance alone is sufficient. But in a case where personal

appearance is exempted, then only vakalath can be insisted.

Therefore, Annexure 2 order is set aside to the extent of insisting

the petitioner to file vakalath. At the same time, it is made clear that

this Court has not stated anything with regard to the insistence for

personal appearance while pleading guilty in the case.

Crl. M.C. is disposed of as above.

SD/-

K.HARIPAL

JUDGE

DCS/16.10.2021

APPENDIX

PETITIONER'S ANNEXURE

ANNEXURE 1 TRUE COPY OF CHARGE SHEET DATED 13.10.2016 IN CRIME NO.1831/2016 O N.PARAVUR POLICE STATION.

ANNEXURE 2 CERTIFIED COPY OF THE ORDER IN CRL.M.P NO.642/2021 IN S.T.NO.3557 OF 2016.