Narayanamurthy vs Subbulakshmi

P.K. Sethuraman, J.—This is a petition under Ss. 482 and 483, Crl. P.C., praying to direct the learned Chief Metropolitan Magistrate,

Egmore, Madras, not to insist on the counsel instructed by the petitioner to appear on his behalf in M.C. No. 189 of 1987 on his file to file a

vakalatnama, but to accept a memo of appearance properly and duly presented before progress of further proceedings.

The petitioner Narayanamurthy has filed the affidavit to the effect that he had engaged Shri K.S. Dinakaran and his Juniors Thiru T.K.

Ravikumar, Thiru N. Umachandran and Thiru B. Vasudevan and had duly instructed them to appear for him in M.C. No. 189 of 1987 on the file of the Chief Metropolitan Magistrate, Egmore, Madras. Thiru T.K. Ravikumar, one of the Junior counsel, has filed the affidavit stating that he along with his senior Thiru K.S. Dinakaran and other Juniors of the office have been engaged and duly instructed by Thiru Narayanamurthy, the respondent in M.C. No. 189 of 1987 before the Chief Metropolitan Magistrate, Egmore, Madras, and other proceedings initiated by one

Subbulakshmi shown as respondent herein, claiming maintenance for herself and her two minor children stating that she is wife of Narayanamurthi and the children were born out of lawful wedlock with him. Narayanamurthi was served with summons directing him to appear before the Court on

8th December, 1987 in M.C. No. 189 of 1987. On 8th December, 1987 the counsel along with the petitioner appeared before the learned Chief

Metropolitan Magistrate in M.C. No. 189 of 1987 and he had kept ready a memo of appearance duly stamped and signed by his senior Thiru

K.S. Dinakaran and other Juniors including himself and in that memo of appearance they had declared that they had been duly instructed to appear for the respondent in M.C. No. 189 of 1987. At about 11 a.m. on 8th December, 1987 when the case was called the parties were present in

Court and on behalf of Narayanamurthi the respondent in M.C. No. 189 of 1987 the memo of appearance was presented by him to the Court

Clerk-cum-Interpreter, who, stated that a vakalat should be filed and not a memo, of appearance and handed over the same to the learned

Magistrate. The learned Magistrate after perusing the memo of appearance observed that the proceedings being civil in nature only vakalat duly signed by the party and in conformity with the rules relating to vakalat must be filed and a memo of appearance would not be entertained.

Further according to the affidavit, the learned counsel submitted to the learned Magistrate that in view of Rule 29 of the Criminal Rules of

Practice, the filing of a memo of appearance could be legally justified and a vakalatnama was not contemplated in criminal proceedings either during trial, appeal or revision stages and he also submitted that there was a ruling of the Madhya Pradesh High Court reported in The State of

Madhya Pradesh Vs. Lohra, , wherein the said High Court had categorically held that no vakalatnama was necessary for pleadings and acting in criminal proceedings and that Advocate's own declaration of his being authorised by accused was sufficient. He undertook to produce the ruling soon thereafter. But the learned Magistrate not being persuaded by the submissions observed that the Criminal Rules of Practice did not prohibit the filing of a vakalat and a vakalat must be filed in the proceedings. The learned Magistrate was not inclined to take notice of the authority and it was observed that the said ruling was not binding on him. The memo of appearance duly stamped and properly presented was returned to him with a direction to file a vakalat. He submitted to the Court that the memo of appearance may be returned with an endorsement "that a vakalat had to be filed" or an order to that effect so that the need for filing the vakalat in criminal proceedings could be set at rest legally by authoritative pronouncement by the High Court. The learned Magistrate did not accede to the request and posted further proceedings in M.C No. 189 of 1987

to 22-12-1987 with a direction that the counter would have to be filed on that day. Neither his presence nor the appearance signed by several counsel presented and returned, had been taken note of or recorded.

The affidavit further proceeds dealing with the definition of ''Judicial Proceedings'' in Ss. 2(1) and 6, Crl. P.C. dealing with the classes of criminal

Courts and petitions under S. 125, Crl. P.C., being filed in the Judicial First Class Magistrate Courts including that of the Court of the Chief

Metropolitan Magistrate and the procedure prescribed under S. 126, Crl. P.C. It is further stressed that a line of distinction will have to be kept in mind regarding a proceeding being in the nature of a civil proceeding and it being one under the criminal statute with rights and liabilities arising out of it entrusted for decision to the Courts categorised as criminal Courts in contra distinction with civil Courts. Hence it has been stated that it will be erroneous to insist on filing a vakalat which would have the sanction of law and the observation that filing of a vakalat was not prohibited can lead to disastrous results if prohibitions alone were to be taken into consideration as permissibilities. Hence it has been prayed to direct the learned

Chief Metropolitan Magistrate not to insist on the counsel instructed by Thiru Narayanamurthi to appear in the said proceedings to file a vakalatnama but to accept a memo of appearance properly and duly presented before progress of further proceedings.

A copy of the affidavit filed by the Junior counsel was directed to be sent to the learned Chief Metropolitan Magistrate, Egmore, Madras, and

to call for the remarks from the learned Magistrate. The learned Chief Metropolitan Magistrate in his lengthy remarks, among other things, has mainly submitted that the nature of proceedings under S. 125, Crl. P.C., is civil and has thought fit to make elaborate commentaries on the subject and according to the learned Chief Metropolitan Magistrate proceedings under S. 125, Crl. P.C., are either of the civil nature or quasi-civil nature and never criminal proceedings. The learned Chief Metropolitan Magistrate has categorically stated in the remarks that the proceedings under S.

125, Crl. P.C., are not criminal proceedings at all in any sense. A copy of the decision rendered by Padmini Jesudurai, J., in Crl. M.P. No. 811 of

1986 had been sent and the order was in a petition under S. 482, Crl. P.C., to set aside an exparte order passed in maintenance proceedings. In that order the learned Judge dealt with the contentions raised by the petitioner in that case regarding the service of summons in violation of S.

62(1), Crl. P.C., viz., that it was sent by registered post with acknowledgement due. The learned Judge dealing with the contentions elaborately has pointed out that such method of service was not illegal. Mentioning the said decision the learned Chief Metropolitan Magistrate has gone to the extent of deducing that once the proceedings are not criminal proceedings, the respondent in M.C. No. 189 of 1987 has to enter appearance through a lawyer by filing a vakalatnama and memo of appearance under Rule 29 of the Criminal Rules of Practice is contemplated only when the lawyer appears for an accused in criminal proceedings. Further according to the learned Magistrate the proceedings under S. 125, Crl. P.C., are not criminal proceedings and so no memo of appearance could be filed and therefore the question of filing of memo of appearance in the proceedings under S. 125, Crl. P.C., is completely ruled out.

As regards the affidavit sent to the learned Magistrate, among other things it has been observed by the learned Magistrate that the memo of

appearance seems to have been presented before the Interpreter and the counsel did not agree to file vakalat in spite of being told. The learned

Magistrate has categorically stated that the allegation that the memo of appearance was passed on to the Court by the Interpreter is incorrect. The learned Magistrate has also pointed out that there had been no scope for any submission with regard to the said Madhya Pradesh decision.

It is to be pointed out that the learned Chief Metropolitan Magistrate has failed to note the decision rendered by Sengottuvelan, J., in the case

reported in Ulaganambi, R.P. v. K.C. Loganayaki 1986 L.W. (Cri.) 122, wherein the learned Judge has pointed out that the proceedings under S.

125, Crl. P.C., are governed by the provisions of the Code of Criminal Procedure, and are not of civil nature. In the decision rendered by the

Madhya Pradesh High Court reported in The State of Madhya Pradesh Vs. Lohra, it has been pointed out as to how a vakalatnama was not necessary when a counsel appeared for the accused, praying for the absence of the accused to be condoned. No doubt the proceedings under S.

125, Crl. P.C., may not be strictly criminal proceedings and it may be quasi-civil. But having regard to the fact that the Criminal Rules of Practice is applicable to Criminal Courts what is contemplated under Rule 29 of the Criminal Rules of Practice cannot be ignored. Rule 29(1) of the Criminal

Rules of Practice is as follows:

Pleader to file vakalatanama for prosecution and memo of appearance for defence. (1) Every Pleader, as defined in S. 4(r) of the Code other

than an Advocate or Public Prosecutor, appearing, for the prosecution in any criminal proceeding other than a Criminal Appeal shall file in Court a vakalatanama from his client authorizing him so to appear. In all criminal Appeals, such pleader may file a memorandum of appearance instead of a

vakalat. Every such Pleader defending an accused person and every Advocate appearing in any criminal Proceedings in any Court shall be required to file a memorandum of appearance containing a declaration that he has been duly instructed to appear by, or on behalf of, the party,

whom he claims to represent.

It may be relevant to point out that under Sch.II, Article 16 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, the Court fee payable for Makhtanama, Vakalatnama or any paper signed by an Advocate signifying or intimating that he is retained for a party is same. In the decision reported in Norbet Kispatta Vs. Mst. Tersa Kerketa, the learned Judge of the Orissa High Court has pointed out, referring to the decision rendered by the Supreme Court reported in Nandlal Misra Vs. K.L. Misra, that the proceedings under Chap. XXXVI relating to granting of maintenance are not civil proceedings so as to attract the provisions of the CPC as the said proceedings are wholly governed by the provisions of the Code of Criminal Procedure. Though the proceedings under S. 125, Crl. P.C., may not be strictly criminal proceedings, so far as memorandum of appearance is concerned it will be applicable, and that the learned Magistrate concluding that only vakalatnama has to be filed is not correct. It is made clear that filing of vakalatnama need not be insisted. In such proceedings it is enough even if a memorandum of appearance duly stamped is filed for the purpose. Accordingly the learned Magistrate is directed to receive the memo of appearance duly signed and stamped by the counsel for the respondent in M.C. No. 189 of 1987. Ordered accordingly.

Having regard to the facts leading to the filing of this petition in this Court, the proceeding in M.S. No. 189 of 1987 is ordered to be transferred

from the file of the Chief Metropolitan Magistrate, to the file of the Second Metropolitan Magistrate, Egmore, Madras, for disposal according to law and the learned Chief Metropolitan Magistrate is directed to send the records in this case for further disposal to the Court of the Second

Metropolitan Magistrate, Egmore, Madras.