VIJAYAKUMAR Vs. AMIRTHAVALLI

JUDGEMENT

(1.) LEARNED counsel appearing for the petitioner submits that the petitioner has come forward with this petition seeking for the relief of setting aside the order passed by the learned Judicial Magistrate No. II, Chidambaramin c. M. P. No. 462 of 2007 in C. C. No. 655 of 2006 allowing the petition filed under S. 302, cr. P. C. seeking permission to the complainant's-husband to conduct the prosecution on behalf of the complainant.

(2.) LEARNED counsel for the petitioner submits that the learned Magistrate has passed the order without considering the infirmities involved in this matter in respect of power of attorney given in favour of the husband of the complainant. It is contended by the learned counsel for the petitioner that any appointment of power of attorney should be processed by an appropriate order of the court. Therefore, it is contended by the learned counsel for the petitioner in this case the power of attorney was executed prior to the filing of the complaint and the respondent-complainant has not obtained any court order for execution of such power of attorney. Learned counsel for the petitioner also placed reliance on the decision of the hon'ble Supreme Court reported in 2005 sar (Criminal) 8 : (2005 Cri LJ 112) (Jimmy jahangir Madan v. Bolly Cariyappa Hindle (D) by LRs. ).

(3.) PER contra, learned counsel appearing for the respondent contended that there is no infirmity or illegality in the order passed by the learned Magistrate allowing the respondent-complainant to be represented by her husband. Learned counsel for the respondent submits that irrespective of the power of attorney executed in favour of the husband of the respondent-complainant, the respondent-complainant filed a petition under S. 302, Cr. P. C. to permit the respondent-complainant's-husband to conduct the prosecution on behalf of her. It is also submitted by the learned counsel for the respondent that the respondent-complainant also executed the power of attorney document on 8-2-2007 authorising her husband to prosecute the complaint on her behalf, as she has to go to Canada to assist her pregnant daughter for delivery. Learned counsel for the respondent also placed reliance on the very same decision relied by the learned counsel for the petitioner cited above and yet another decision of the Hon'ble Supreme Court reported in (2007) 2 SCC (Cri)63 : (2007 Cri LJ 2306) (Rashida kamaluddin Syed v. Sk. Saheblal Mardan)in support of his contention. Learned counsel for the respondent contended that in the latest decision namely, (2007) 2 SCC (Cri)63 : (2007 Cri LJ 2306), the Hon'ble Apex court has made a reference about the decision relied on by the learned counsel for the petitioner i. e. 2005 SAR (Criminal) 8 : (2005 cri LJ 112) (Jimmy Jahangir Madan v. Bolly cariyappa Hindle (D) by LRs. ).