1. This is an application filed by one Bajirao Abaji Kulkarni who has been practising as a mukhtyar for the last six years since 1921 in the Sinnar Taluka in the Nasik District. It appears that the Bar Association of Sinnar made a representation to the District Magistrate of Nasik who parsed an order that in future the services of mukhtyars should not be employed in criminal or other cases at Sinnar unless the Magistrate certifies under his own hand that the party is too poor to engage the services of a qualified pleader.
2. The first question which arises for consideration in this case is whether this is an order of a criminal Court which falls within Sections 435 and 439 of the Criminal Procedure Code. Our attention has been invited to the precedents of this Court in the cases of Tamannacharya alias Narsinh Guracharya Shiggaon (1924) Cr. Rev. No. 407 of 1924 and Reg. v. Ramchandra (1862) Unrep. Cr. C. 1 and to the decision of the Allahabad High Court in the case of In the matter of the petition of Anant Ram I.L.R. (1907) 30 All. 66, in which similar applications were entertained by the High Court. We have decided to hear the application on the merits.
3. Under Section 340 of the Criminal Procedure Code, an accused person has a right to be defended by a pleader. 'Pleader' is defined in the Criminal Procedure Code, Section 4(r). Under the old Code of 1882, 'pleader' included any mukhtyar or other person appointed with the permission of the Court to act in such proceeding. Sections 6, 7 and 10 of the Legal Practitioners Act, XVIII of 1879, make provision for the issue of a certificate to mukhtyars, But the Legal Practitioners Act does not apply to Bombay, and even in the provinces to which the Act applied, it was held that the mukhtyars could not be given general permission to practise, but the Court must decide in each particular case whether a mukhtyar should be allowed to appear. See Ishan Chandra Bhutt v. Emperor I.L.R. (1911) 38 Cal. 488 and In the matter of the petition of Anant Ram I.L.R. (1907) 30 All. 66, F.B.. But these decisions are no longer law having regard to the change in the definition of 'pleader' by Act XXXV of 1923 which may now render it unnecessary that mukhtyars should have special permission in each case in the provinces to which the Legal Practitioners Act applies. But Sections 6, 7 and 10 of the Legal Practitioners Act do not apply to Bombay and the Bombay Pleaders Act, XVII of 1920, does not make any provision for issuing any certificate to mukhtyars. There are in the Bombay Presidency no mukhtyars authorized under any law for the time being in force to practise in any Court within the Presidency. The question, therefore, has to be decided on the wording of Section 4(r) of the Criminal Procedure Code. It is conceded by Mr. Thakor that the applicant does not fall under the first clause of Section 4(r), that is 'a pleader or a mukhtyar authorized under any law for the time being in force to practise in such Court', but he contends that he falls within the words 'any other person ap pointed with the permission of the Court to act in such proceeding'. Having regard to the ruling of this Court in Emperor v. Dorabsha Bomanji I.L.R. (1925) 50 Bom. 250 28 Bom. I.R. 102, in which an estate manager was allowed to appear for an accused in his stead and plead and do other acts on his behalf in the case against him, we think that a mukhtyar would fall within Section 4, Clause (r), of the Criminal Procedure Code, and represent an accused as a pleader with the permission of the Court in any proceeding. If an estate manager can be allowed to appear on behalf of an accused with the permission of the Court, there is no reason why a mukhtyar, though he has no general power to appear in any Court, should be debarred from appearing in any proceeding in a criminal Court with the permission of the Court.
4. The matter was considered recently in Chambers, and the Circular No. 5216 of 1927 dated October 17, 1927, is to this effect :
It has been represented to the High Court that in certain Districts nonqualified persons have been allowed generally to practice in all Criminal Courts as mukhtyars. Under Section 4(1)(r) of the Code of Criminal Procedure a Criminal Court can grant permission to an individual to act in a particular proceeding pending before it. But the law in this Presidency does not allow Muktyars to be given general permission to practise in all cases or in all Courts. The Honourable the Chief Justice and Judges are therefore pleased to direct that general permission to appear in Criminal Courts should not be given to any Mukhtyar and that no Mukhtyar should be allowed to appear in any case in any Court before he obtains the special permission of the Magistrate before whom the case is to be heard to appear in that case only.
5. The order passed by the District Magistrate in this case is a very general order, and he has imposed a condition which is not recognised by the Criminal Procedure Code,
6. We would, therefore, set aside the order of the District Magistrate of Nasik, and direct that the District Magistrate and the Magistrates subordinate to him should follow the circular mentioned above.