1. This was a Rule calling upon the District Magistrate to show cause why the appeal should not be re-heard on the ground that a Mukhtear has a right to appear for the defence of an accused person in any Mofussil Court.
2. The issue of this Rule appears to have raised a general question between Vakils and Pleaders and Mukhtears as to the right of the latter to appear in criminal cases. It was never intended that such a question should be raised and the question is obviously one which has been disposed of by the terms of the law and by the High Court Rules. The law is contained in Section 340, Criminal Procedure Code, read with Section 4, Clause (r) of the same Code. Every person accused before any Criminal Court may of right be defended by a Pleader; and Pleader in this connection includes any Mukhtear or other person appointed with the permission of the Court to act in such proceeding.
3. This particular practitioner has a 15-Rupee license entitling him to practise as a Mukhtear in all Civil and Criminal Courts subordinate to the High Court except the Calcutta Small Cause Court. It is, therefore, clear that subject to the permission of the Criminal Courts in each case (and this applies equally to the Sessions Judge and the Magistrates) he is authorised to practise.
4. What we intended in issuing the Rule was to emphasise the position that an accused person having the right to be defended by the class of persons enumerated in Section 4 Clause (r), it would rarely be a wise discretion on the part of the Sessions Judge or the Magistrate to refuse permission to a Mukhtear appearing for the defence That appears to be the tenor of the rules Which have been laid down by this Court for the guidance of Magistrates and as the certificate is the same for both Sessions Judge's Court and Magistrate's, we presume that, the rules laid down for Magistrates are equally applicable to Sessions Judges: 'The terms of Section 340 do not warrant any general rule for the exclusion of Mukhtears in all cases, but only allow the exercise by Magistrates of a discretion in each case as it arises. The Magistrates are expected not to deprive parties of legal aid which they could frequently obtain at a moderate cost by indiscriminate exclusion of persons who are invested by law with a distinct professional status in criminal trials.' Every Magistrate is bound in each case that comes before him to use the discretion vested in him by law before giving permission to an uncertified Pleader and in deciding whether permission should be given or not, the character of the person appointed to plead is one of the matters to be taken into consideration.
5. It has been urged before us by the learned Counsel in showing cause against the Rule that if this latter rule is applied in practice, the result would be that no Mukhtear can be excluded on either side except on personal grounds and this will result in their being admitted to universal practice.
6. In the first place, we have to point out that this Rule does not apply to Mukhtears but to uncertified Pleaders. Under Section 4 Clause (r) a Mukhtear is a certified Pleader when he obtains the permission of the Court to appear in any particular case.
7. We quite agree with the learned Judge that Mukhtears should not be permitted to appear in the Sessions Court where their appearance is unnecessary or where there is no reason for their appearance. But that is a matter which must be decided independently in every case and no general rule can be issued. The learned Judge seems to have discussed the matter from the point of view of general practice. He has laid down, that as a general practice, Mukhtears should be allowed to appear in every case in Magistrates' Courts as they do now and that as a general practice they should not be allowed in any case to appear in the Sessions Court. Those general rules are both of them equally erroneous. The Magistrate has to decide in every case whether he will permit a Mukhtear to appear; and the Sessions Judge has to decide in every case whether he will permit a Mukhtear to appear and we think' that it is very difficult to exclude a qualified practitioner when he appears for the defence of an accused person and that is all that we desired to put forward when we issued this Rule.
8. It is not competent to the Court below to say that this matter was merely put forward to test the right of Mukhtears inasmuch as the appeal was almost out of time. The fact that the appeal was almost out of time may have been the very reason for employing the very first practitioner that came to hand, namely a Mukhtear, there being nothing against the appearance of the Mukhtear in this particular case. We think that the Rule should be made absolute and that the appeal should be re-heard. Of course, the learned Sessions Judge may still exercise his discretion at the hearing of the appeal and may permit a Mukhtear to argue it but that -will largely depend upon the question whether the accused person is in a position to employ a Vakil or Pleader and whether he elects to do so. All we are anxious, to avoid is that the defence of an accused person may not be shut out merely by the fact that he is represented by a Mukhtear.
9. The Rule is, therefore, made absolute and there will be a re-hearing of the appeal.