Harishankar Rastogi v. Girdhari Sharma and Anr.

KRISHNA IYER, J. The petitioner appears in person and seeks per-m1ss10n to be represented by another person, who is not an advocate,. falling within the definition in section 2(a) of the Advocates Act 1961. On a:n earlier occasion Sri R. K. Jain, Advocate of this Co~rt was. requested to act as amicus curiae since the petitioner represented that he could not engage counsel. However, Sri Jain, for reasons which we need not go into here, has been discharged from the brief at his request. The short question that I have to decide here is whether a person who is not an advocate by profession, can be permitted to plead on behalf of the petitioner ?

Advocates are e]ltitled as of right to practise in this Court (Section 30(i) of the Advocates Act, 1961). But, this privilege cannot be claimed as of right by any one else. While it is true that Art. 19 of the Constitution guarantees the freedom to practise any profession, it is open to the State to make a law imposing, in the interest of the general public, reasonable restrictions on the exercise of the righi. The Advo-cates Act, by Section 29, provides for such a reasonable restriction, namely, that the only class of persons entitled to practise the profession of law shall be advocates. Even so, is it not open to a party who, is unable for some reason or other to present his case adequately to seek the help of another person in this behalf ? To negative such a plea may be denying justice altogether in certain cases, especially in a land of illiteracy and indigence and judicial processes of a sopbisticated nature. That is precisely why legislative policy has, taken care to provide for such contingencies. Sections 302, 303 and 304 of the Criminal Procedure Code are indicative of the policy of the legislature. r do not think that in this Court we should totally shut out representation by any person other .than the party himself in situations where an advo-cate is not appearing for the party. A comprehensive programme of free legal services is, in a sense, a serious obligation of the State if the rule of law were to receive vitality in its observance. Until then parties may appear through advocates, and where they are not represented by one such, through some chosen friend. Such other person cannot prac-tise the profession of habitually representing parties in court. If a non-advocate specialises in practising in court, professionally he will be violating the text of the interdict in the Advocates Act. I cannot allow him to do so. Nevertheless, it is open to a person, who is partv to a proceeding, to get hims.e!f represente~ by a non-advoca.te in a pa:ticular instance or case. Practismg .it profess10n means somethmg very different from representing some friend or relation on one occasion or in one case or on a few occasions or in a few cases. In the present instance, pennission is sought for representation through a non-advocate. It is absolutely clear that any. one who is not an advocate, cannot, as of right, force himself into this Court and claim to plead for another. Per-mission may, however, be granted by this Court taking the justice of the situation and several other factors into consideration for stich non-_, professional representation. This approach accords with the policy ot

the Criminal Procedure Code (I am concerned with a criminal proceed-ing here) as spelt out -in Section 2( q). A pleader, by definition, includes any person other than one authorised by law to practise in a court if he is appointed with the permission of the court, to act in a particular proceeding. This Court's power may well b~ exercised in regnlating audience before it in tune with the spirit of section 2 ( q) ot the Code.

The petitioner has put in a written representation citing a number of decisions to justify his stand that private persons may be permitted by the court to appear, act and plead. He has cited a number of decisions in support of his position. Apparently, some legal hand has lent him help. I thought it fit to give notice to the Supreme Court Bar Association and Sri Nain has represented the Bar Association before D· me and assisted me with his brief but telling submissions. His experi-ence as a senior member of the Bar and as a one-time judge of a High Court is an additional factor of assistance. Sri Nain persuasively ·stated that while a private person who is not an advocate by profession cannot, as of right, walk in the claim to argue before this Court. he may, in a particular case, be specially permitted by the court in exercise of its wise discretion. The wisdom of the discretion, in his submission, must be guided by a plurality of considerations. If the man who seeks to represent has poor antecedents or irresponsible behaviour or dubious character, the court may receive counter-productive service from him. Justice may fail if a knave were to represent a party. Judges may suffer if quarrelsome, ill-informed or blackguardly or blockhea'dly private representatives fling arguments at the Court. Likewise, the party him-self may suffer if his private representative deceives him or destrovs his case by mendacious or meaningless submissions and with no respnn- ·sibility or respect for the Court. Other situations, settings and dis-qualifications may be conceived of where grant of pennission for a private person to represent another may be obstructive. e1·en destructive of justice. Indeed, the Bar is an extension of the system of justice; an advocate is an officer of Court. He is master of ari expertise but more than that accountable to the Court and governed by a high ethic. The success of the judicial process often depends on the services of the legal profession.

Having regard to this conspectus of considerations I hold that a private person, who is not an advocate, has no right to barge into Court and claim to argue for d party. He must ?et the prior pennission of the Court, for which the motion must come from the party Jlimself. It is operi to the Court to grant or withhold permission in its discretion. In fact, the Court may, even after grant of permission, withdraw it half-way through if the representative proves himself reprehensible. The antecedents, the relationship, the reasons for requisitioning the services ·of the private person and a variety of other circumstances must be gathered before grant or refusal of permission. In the present case I have noticed the pe;titioner and his friend who ls to represent him, come together with mntual confidence. The party somehow has not shown sufficient confidence in advocates he has come by. This bodes ill for him. I should have suspected the association of the private person as having sinister implications of exploitation of a guideless party but suspi-cion by itself should not be the basis of a conclusion. Therefore, I think it right to give the party, who appears to be unable to represent his own case, an opportunity to present his grievance through his friend. That friend, judging by the note prepared and put in, seems to be familiar with law, although quacks can prove fatal friends. I grant the petitioner permission to be represented by a private person as prayed for, with the condition that if this latter proves unworthy, the permission will be withdrawn.

CRIMINAL APPELLATE JURISDICTION : Criminal Misc. Petition No. 506 of 1978.

(Application for cancellation of the appointment of Amicus Curiae. and for permission to be represented by another person)

Petitioner-in-Pers011.

. R. L. Nain and M. V. Goswami for the Supreme Court Bar Asso. ciation (Amicus Curiae).