JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS miscellaneous petition is for dispensing with the copy of the order which a Sessions Judge" has passed dismissing the application moved in that court to enlarge an accused on bail. THIS miscellaneous petition has been moved in a criminal miscellaneous case filed in this court under S. 439 of the Code of Criminal Procedure (for short 'the Code')for enlarging the said accused on bail. As the Sessions Court declined to release the accused on bail, normally, petitioner should have produced a copy of the order of the Sessions Court here. Learned counsel expressed the difficulty, in that, the Sessions Judge rejected his application to grant copy of the order to the counsel on the ground that the counsel had not filed vakalath. The stand of the learned Sessions Judge is that a copy of the order could be supplied to the counsel only on filing a special vakalath as envisaged in R. 35 of the Criminal Rules of Practice (for short 'the Rules of Practice' ). The counsel had filed a memorandum of appearance in the lower court containing a declaration that he has been duly instructed by the accused. It is admitted that the counsel had not filed a vakalath or a power of attorney executed by the accused in the lower court. The question has, therefore, to be considered whether a copy of the order can be supplied to the counsel without filing a vakalath or power of attorney executed by the accused.

(2.) IT is the fundamental right of every person arrested "to consult and to be defended by a legal practitioner of his choice". No fetter can be imposed and no restriction can be placed on the fundamental right so guaranteed by the Constitution of India. But the parliament has further widened the scope of the said right by conferring the said right on any person accused of an offence or against whom any proceedings have been instituted under the Code. This is evident from S. 303 of the Code which reads thus: "any person accused of an offence before a Criminal court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice" Thus a pleader can defend an accused against proceedings instituted under the Code. This is the protected right of the accused. The pleader in defending the accused may have to adopt various legal steps including filing application for bail. "pleader" is defined in S. 2 (q)of the Code as "a person authorised by or under any law for the time being in force, to practice in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding". R. 31 of the rules of Practice provides that a pleader shall file a memorandum of appearance containing a declaration that he has been duly instructed by or on behalf of, the party whom he claims to represent. On filing a memorandum of appearance the pleader is entitled to appear and act on behalf of the accused in any criminal court.

(3.) THAT apart, R. 36 of the Rules of Practice is sufficient to remove any doubt, if at all there is any, on this point. The said rule says that the appointment of a pleader in a criminal case shall be "deemed to authorise him to appear or to make an application or to do any act in connection with getting copies of judgments and other documents" even after the termination of proceedings. Here, the expression "do any act in connection with getting copies" would certainly take in the acts of applying for and collecting or receiving such copies. R. 36 marks the distinction from the preceding rule. What is envisaged in R. 35 is delivery of the document itself whereas R. 36 refers to copies of such documents. Even when a pleader cannot receive the document on behalf of his client without special authorisation through a vakalath, he is entitled to receive copies of such documents. This is the distinction between the two rules. If that be the position, even in regard to documents as such, there can be no doubt that a pleader can receive copies of judgments or proceedings in court without filing a vakalath, provided, he files a memorandum of appearance envisaged in R. 31. It is expected that the subordinate courts will follow the aforesaid interpretation while dealing with applications for copies of proceedings. As the copy applied for by the counsel has not been granted by the Sessions Court on a wrong interpretation of the rule, I allow this Crl. M. P. and dispense with the production of the copy of the lower court order. . .