Raj Bala vs State Of Uttarakhand & Others

Lok Pal Singh, J

Heard learned counsel for the parties.

Since, the facts and relief sought in both the criminal writ petitions are identical. Therefore, these are being decided together by this common judgment and order.

The petitioner has filed both the writ petitions for the following relief amongst others:

i) To issue a writ, order or direction in the nature of mandamus directing to the respondent to get the matter investigated thoroughly through the CB CID.

ii) To issue any other writ, order or direction in the nature of mandamus directing the police of the concerned police station not to arrest the petitioner during investigation.

iii) A. To issue a writ, order or direction in the nature of certiorari to call for record an quash the F.I.R. dated 19.09.2014 lodged by police in case crime No. 289 of 2014 U/s 2/3 of Gangster Act to he extent of the petitioner.

B. OR, in alternative to issue a writ, order or direction in the nature of mandamus to direct the investigation through CB CID or CBI alongwith case Crime No. 243 of 2014 P.S. Gang Nahar, District Haridwar.

The writ petitions have been filed in the name of Smt. Raj Bala, W/o Late Naresh Rathi, R/o Teekri, P.S. Doghat, Bagpat, U.P., alongwith writ petition vakalatnama of Dr. I.M. Quddusi, Mr. G.C. Kandpal and Mr. Vinod Tiwari, Advocates has been filed, the name of the person engaging them is shown Mr. Ashok Kumar S/o Brahmpal Singh, R/o 541, Patti Davura, Kasba Teekri, Tehsil Badaut, P.S. Doghat, Bagpat, U.P. However, it does not bear the signatures of Mr. Ashok Kumar. Name of Mrs. Raj Bala Chaudhary is at the place of the person, engaging them which has been identified by one Sanjay Kumar S/o Bishumber Arya, Nainital Club, Mallital, Nainital.

Perusal of the vakalatnama would reveal that there is no reference in the writ petition that the writ petitioner has filed this writ petition through Mr. Ashok Kumar and has appointed him as her agent to file the writ petition. The writ petition, affidavit and annexures have been signed by Mr. Ashok Kumar claiming that he is doing pairvi on behalf of the petitioner. Alongwith writ petition criminal misc. application was filed. The writ petition was listed before learned Single Judge of this Court on 05.01.2015. The learned Judge of this Court directed as an interim measure that no coercive steps shall be taken against the petitioner in connection with the case Crime No. 243 of 2014, relating to offences punishable under Sections 147, 148, 149, 307, 302, 120-B, 34, 109, 420, 467, 478 and 471 of I.P.C., Police Station Gang Nahar, Roorkee, provided she cooperates with the investigating agency during the investigation of the case. The relief interim application was disposed of on the same day.

Subsequently, the writ petition was listed before learned Single Judge and was adjourned several times. Stay vacation application no.598 of 2015 was filed. The stay vacation application came before Vacation Judge of this Court on 10.02.2015; the same was rejected on 1.02.2015. Thereafter, the matter was listed before this Court and again stay vacation applications were filed, but the learned Single Judge rejected both the applications and on its own observed that why the matter not be transferred to the CB CID or the CBI for fair investigation. When the Bench was changed the matter listed and adjourned. When this matter came before this Court, the counsel who filed the writ petitions did not appear rather Mr. P.C. Petshali, counsel appeared and he seeks adjournment but considering the gravity of the matter this Court declined to adjourned the matter.

On perusal of the memo of writ petitions, affidavit filed in support thereof and vakalatnama filed by the learned counsel, whose names have been mentioned above, it would reveal that the petitioner was not in custody at the time of filing the aforesaid writ petitions. The writ petitions were filed for quashing of the FIR and interim protection during the investigation.

Pleader has been defined in Section 2(15) of the Code of Civil Procedure, 1908 which is extracted as under:-

"Pleader" means any person entitled to appear and plead for another in Court, and includes as advocate, a vakil and an attorney of a High Court;"

The definitions of recognized pleaders and agents have been given in Rule 1 & 2 of Order 3 which are extracted hereunder:-

"1. Appearances, etc., may be in person, by recognized agent or by pleader-Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader 11[appearing, applying or acting, as the case may be,] on his behalf:

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

Recognized agents - the recognized agents of parties by whom such appearances, applications and acts may be made or done are-

(a)persons holding powers-of- attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b)persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts."

Perusal of the vakalatnama filed by advocates Dr. I.M. Quddusi, Mr. G.C. Kandpal and Mr. Vinod Tiwari in both the writ petitions would reveal that they have been engaged by Mr. Ashok Kumar who had no authority to appoint them as pleaders. Rule 4 of Order 3 of Code of Civil Procedure, 1908 is in regard to the appointment of pleader, which is extracted hereunder:-

"12[4. Appointment of pleader- (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be 13[filed in Court and shall, for the purposes of sub-rule (1), be] deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client."

It is apparent on perusal of vakalatnama of the aforesaid advocates in both the writ petitions that they are not the recognized agents on behalf of the writ petitioner. Therefore, they cannot be appointed as pleaders by Mr. Ashok Kumar. Thus, the basis of filing the writ petitions by the counsel in the name of petitioner itself does not authorizes them to file the aforesaid writ petitions. The learned advocates are known for their legal acumen but it appears to this Court that the above named advocates have filed the writ petition in fishy name. The filing of writ petitions before this Court in such a fashion is not only surprising but also against the law and amounts forgery and fraud with the Court. By filing the writ petitions in such a manner and obtaining interim order from this Court has served their purpose. The practice of filing vakalatnama in such a manner by lawyers is deprecated. As all the three lawyers namely, Dr. I.M. Quddusi, Mr. G.C. Kandpal and Mr. Vinod Tiwari are not coming before this Court. They have not withdrawn their Authority.

A person himself or herself can institute proceeding in his or her name. In case the person himself or herself is unable to institute the case, the power can be assigned under the provisions of Power of Attorney Act, 1882 to do certain acts on behalf of the person. The power of attorney is creation of an agency, whereby the grantor authorizes the grantee to do the acts specified therein on behalf of grantor, which when executed will be binding on the grantor as if done by grantor.

It is for the best reasons known to the advocates as to why they have filed the writ petitions without there being any agency/ power of attorney in favour of Mr. Ashok Kumar in whose name the vakalatnama has been filed, though there are no signatures of Mr. Ashok Kumar on vakalatnama and how the advocates who filed vakalatnama on behalf of the petitioner considered that Mr. Ashok Kumar is the right person to appoint them as pleaders / advocates.

On perusal of the relief sought in the petitions, this Court is of firm opinion that the manner in which the petition has been filed for quashing the FIR and transferring of investigation is foreign to law. Thus, it is held that both the writ petitions filed in the manner are not maintainable. Mr. P.C. Petshali, Advocate appearing on behalf of the appellant would submit that he may be granted time to cite the law on filing the writ petition through a pairokar before this Court. Neither, the petitioner was languishing in jail on the date of filing the writ petitions nor she was arrested by that time.

Neither the writ petitions have been signed by the writ petitioner nor have the advocates been appointed by her. Thus, this Court further finds that Registry of this Court without ascertaining the fact as to whether the writ petitions can be filed in such a manner or not has entertained the writ petitions (Criminal) for quashing of the FIR and misc. interim protection for arrest stay. The writ petitions were neither signed by the petitioner nor affidavits were filed in support of the writ petitions nor vakalatnamas were executed in favour of the advocates, whose names are mentioned above, hence, the aforesaid advocates should not have filed the writ petitions in the name of petitioner.

In view of the above observations, both the writ petitions are not maintainable also no case of quashing the FIR is made out in both the writ petitions and the same are liable to be dismissed.

There is dereliction of duty on the part of the advocates in filing the writ petition in such a manner which is colourable exercise and writ petitions have been filed for oblique motive. Consequently, both the writ petitions are dismissed. However, considering the laches on the part of Registry of this Court following directions are being issued to Registry of this Court:-

i) The Registrar General of this Court is directed not to entertain those writ petitions which have not been filed by the petitioner/ petitioners personally by own signature/ signatures. In case the writ petition has not been filed personally without there being any agency in favour of the person who has to file the writ petition, the same shall not be entertained.

ii) It is further directed that the Registrar shall seek the explanation from the officials of Registry, who have not raised objections in this regard.

Accordingly, both the writ petitions are dismissed with the above directions to the Registrar General.