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In Re: Naupadu Narasimhamurti Patnaick and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1943Mad470; (1943)1MLJ382
AppellantIn Re: Naupadu Narasimhamurti Patnaick and ors.
Excerpt:
- - there are actually four pleaders and one advocate and it was on their representation that the district magistrate issued the order now complained of......parlakimidi which is in orissa but is close to patapatnam, the nearest town in british india. the district magistrate observed that they should enrol themselves under the madras high court if they wished to practise in the district of vizagapatam and he directed the two magistrates mentioned not to allow them to practise in their courts.2. on their behalf it has been urged that under section 340 (1) of the criminal procedure code the petitioners are entitled to appear with the permission of the magistrate in any particular case. a 'pleader' is defined in section 4 (1) (r) of the code, ' a pleader or a mukhtar authorised under any law for the time being in force to practise in such court, and includes (1) an advocate, a vakil and an attorney of a high court, so authorised and (2) any.....
Judgment:
ORDER

Byers, J.

1. The order of the District Magistrate of Vizagapatam which the petitioners now seek to revise was one passed in the exercise of his administrative magisterial functions directing the Taluk Magistrate and the Sharistadar Magistrate of Patapatnam not to allow certain unauthorised persons to practise in their Courts. These four persons are legal practitioners enrolled in the Province of Orissa, three of them apparently being pleaders and the fourth a mukhtar. They practise in Parlakimidi which is in Orissa but is close to Patapatnam, the nearest town in British India. The District Magistrate observed that they should enrol themselves under the Madras High Court if they wished to practise in the district of Vizagapatam and he directed the two Magistrates mentioned not to allow them to practise in their Courts.

2. On their behalf it has been urged that under Section 340 (1) of the Criminal Procedure Code the petitioners are entitled to appear with the permission of the Magistrate in any particular case. A 'pleader' is defined in Section 4 (1) (r) of the Code, ' a pleader or a mukhtar authorised under any law for the time being in force to practise in such Court, and includes (1) an advocate, a vakil and an attorney of a High Court, so authorised and (2) any other person appointed with the permission of the Court to act in such proceeding.' It is argued that although the petitioners are not authorised under any law to practise in the Madras Courts, they nevertheless can come in under the second part of the definition. I am unable to see how the three pleaders can claim protection under the second part of the definition when they are expressly excluded by the first part of the definition, under which an advocate, vakil or attorney of a. High Court must be so authorised. Therefore if the petitioners claim to be entitled to practise as vakils of a High Court, they must show that they are authorised to do so It is conceded that they are not so authorised as their sanads entitle them to practise only in the Orissa Courts. The fourth petitioner is only a mukhtar and he claims to come in under the second part of the definition and the only question which remains is whether his exclusion by the District Magistrate is illegal or irregular. The learned Public Prosecutor raises the objection that the order, being only an administrative order, is not subject to revision under Sections 435 and 439, Criminal Procedure Code. He relies on the decision in the case of Chinnaswami Iyer(1909) 19 M.L.J. 566. This related to a general order issued by a District Magistrate prohibiting the appearance of uncertified pleaders in the criminal Courts of the district and it was held when the proceedings were taken up by one of the uncertified pleaders in revision that the matter was not one for judicial adjudication and that if he was adversely affected by an order of a Sub-Magistrate refusing to accept his appearance, an appropriate application might be made. The learned advocate for the petitioners, arguing contra, relies on the case of Ranga Rao (1908) 4 M.L.T.91 . That case related to a general order passed by a District Magistrate prohibitsing uncertified pleaders from appearing and practising in cases before him and it was held that the order went beyond what was permissible and that it was for the District Magistrate to exercise his discretion in each particular case in which the uncertificated pleader wished to appear. Another case relied on for the petitioners is that of Nagaswami Iyer (1922) 31 M.L.T. 458 in which it was held that the District Magistrate had no authority to direct the Subordinate Magistrates to grant permission to a private pleader to, practise in all cases in the future. The question of allowing private pleaders to appear in Magistrates' Courts is dealt with in Rules 80 and 81 in Chapter IV of the Criminal Rules of Practice where, after referring to the discretion conferred by Section 340 (1) read with the definition in Section 4(1) (r) of the Code of Criminal Procedure, the following direction was issued,

Having regard to the large number of qualified practitioners now available in every part of the Presidency, the discretion to permit ' private pleaders ' to appear and argue cases should be exercised as sparingly as possible, and when such permission is granted the reasons for granting it must be recorded in writing. In general no person who is not a qualified legal practitioner should be permitted to act except to prevent a possible miscarriage of justice:Provided always that these instructions shall not apply to persons who prior to 18th October, 1899, were practising as private pleaders.

So far as Patapatnam is concerned, there is no dearth of properly qualified practitioners. There are actually four pleaders and one advocate and it was on their representation that the District Magistrate issued the order now complained of. Hence there can be no possible grounds for allowing these unqualified or unauthorised persons to appear and practise in the Patapatnam Courts. Although the decision in Ranga Rao's case (1908) 4 M.L.T.91 supports the argument that the order of the District Magistrate is general in character and goes too far, the decision in Chinnaswami Iyer's case (1909) 19 M.L.J. 566 was by a Bench in the following year and I think it is to be accepted in preference to the earlier decision by a single Judge. It follows therefore that the fourth petitioner can have no grievance against this administrative order.

3. On the merits, apart from whether the matter is one for judicial adjudication it must be conceded that the fourth petitioner has got no case whatever. Even if it be admitted for the purposes of argument that the order of the District Magistrate might in 1907 have been considered as going beyond the needs of the case, there can be no real ground on which the fourth petitioner can claim an exemption. in his favour in 1942, when properly qualified and duly authorised legal practitioners are so widely and easily available. For these reasons the petition is ordered to be dismissed.


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