Cri. P Nos.836 of 2004,Cri. P Nos.837 of 2004

19th August, 2004

Petitioner Counsel: Mr. C.B. RAM MOHAN REDDY
Respondent Counsel: Mr. T. PRADYUMNA KUMAR

Cases Cited:
Harishankar Rastogi Vs. Girdhari Sharma, AIR 1978 SC 1019 [Para 3,4]
M/s. Bhaskar Industries Ltd. Vs. M/s. Bhiwani Denim and Apparels Ltd., 2001 ALL MR (Cri) 1961 (S.C.)=2001(2) ALD (Cri.) 530 (SC) [Para 3]
Jackson and Company Vs. Napper, (In re Schmidts' Trade-Mark), (1886)35 Ch D 16 [Para 2,4]
The Queen Vs. Justices of Kent, (1873)8 QB 305 [Para 4]
Ravula Subbarao Vs. Commr. of Income Tax, AIR 1956 SC 604 [Para 4]
Hassan Ali Khan Vs. Regional Passport Officer, Passport Office, Hyderabad, 1997(6) ALD 820 [Para 5,6]
Smt. Maneka Gandhi Vs. Union of India, AIR 1978 SC 597 [Para 5]

JUDGMENT

-Since these two petitions arise out of the orders passed in Cri.MPs. filed in CC No.l29 of 2003, they are being disposed of by a common order.

2. Criminal Petition No.836 of 2004 is filed to quash the order in Crl.MP No.5126 of 2003 impounding the passport of the petitioner, Criminal Petition No.837 of 2004 is filed to quash the order in Crl.MP No.5127 of 2003 directing a non-bailable warrant being issued to the petitioner.

3. Learned Counsel for the first respondent raised a preliminary objection about the maintainability of these petitions, contending that these petitions filed by the General Power of Attorney of the petitioner are not maintainable as there is no provision in Cr.P.C. authorizing a General Power of Attorney of an accused to present proceedings on behalf of his principal and so presenting petitions through his power of attorney agent by the petitioner is improper and so these petitions are liable to be dismissed. The contention of the learned Counsel for the petitioner is that since there is no prohibition either in the Cr.P.C. or in the Rules framed by this Court for presentation of criminal proceedings in this Court, through a power of attorney, petitioner, by invoking the rule Qui Facit Per Alium Facit Per Se, can present proceedings through his power of attorney. He placed strong reliance on Harishankar Rastogi Vs. Girdhari Sharma and another, AIR 1978 SC 1019 and M/s. Bhaskar Industries Limited Vs. M/s. Bhiwani Denim and Apparels Limited, 2001 ALL MR (Cri) 1961 (S.C.) : 2001 (2) ALD (Cri.) 530 (SC) : AIR 2001 SC 3625, in support of his contention.

4. Approving the observation of Stirling J., in Jackson and Company Vs. Napper, (In re Schmidts' Trade-Mark), (1886)35 Ch D 162 at p.l72 (C) that every person, who is a sui juris, has a right to appoint an agent for any purpose whatever, and that he can do so when he is exercising a statutory right no less than when he is exercising any other right, as it is in consonance with Section 182 of the Contract Act, 1872, and relying on the observation of Blackburn J., in The Queen Vs. Justices of Kent, (1873) 8 QB 305 at P.307(D) that at common law, when a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it, the Apex Court in Ravula Subbarao Vs. Commr. of Income Tax, AIR 1956 SC 604, held that unless the statute itself enacts otherwise, an application which a partner has to sign would be in order and valid, if it is signed by his authorized agent. In Harishankar Rastogi case (supra) the Apex Court held that an accused can, with the permission of the Court, appear through an agent, who is not a legal practitioner, and conduct proceedings in a Court. As per the said dicta of the Apex Court, it is clear that an accused can appear through an agent, who is not a legal practitioner, and conduct proceedings Since there is no provision either in Cr.PC or the Rules framed by this Court that proceedings should be presented in this Court by the aggrieved party personally, it is clear that there is no prohibition for a party presenting the proceedings in this Court through a power of attorney agent. So, I am of the considered opinion that these petitions, filed through a power of attorney agent, cannot be rejected on the ground that they are not filed by the petitioner himself personally. Hence, I overrule the preliminary objection raised by the learned Counsel for first respondent.

Criminal Petition No.836 of 2004:

5. The learned Counsel for the petitioner placing strong reliance on Hassan Ali Khan Vs. Regional Passport Officer, Passport Office, Hyderabad, 1997(6) ALD 820 and Smt. Maneka Gandhi Vs. Union of India and another, AIR 1978 SC 597, contends that since no opportunity of being heard is given to the petitioner before impounding his Passport, when Section 10(3)(A) of the Passport Act, 1967, contemplates an opportunity of being heard being given to the Passport holder, order impounding passport of the petitioner is liable to be quashed. It is also his contention that 1st respondent filed this petition falsely alleging that petitioner was in India on the date of presentation of the petition, when in fact he was not in India, and since the prayer in the petition is to 'prevent immigration check clearance' of the petitioner, the learned Magistrate was in error in impounding the passport of the petitioner. The contention of the learned Counsel for the first respondent is that since the petitioner is likely to avoid trial, and cause hindrance to the progress of the case, and since the prayer in the petition is to impound the passport of the petitioner, order impounding the passport of the petitioner needs no interference.

6. As held in Hassan Ali Khan case (supra) a passport holder is entitled to a reasonable opportunity of being heard before an order impounding his passport is passed. Had the petitioner been given a show cause notice as to why his passport should not be impounded, he would have had an opportunity to say what he has to. If the Magistrate is not satisfied with the reasons given by the petitioner, his passport can be impounded. The learned Magistrate was in error in impounding the passport of the petitioner, without giving an opportunity of being heard to the petitioner.

7. Therefore, I set aside the ex parte order passed by the learned Magistrate in Crl.MP No.5126 of 2003 and remit the case to the learned Magistrate for disposal according to law.

Criminal Petition No.837 of 2004.

8. Without going into the merits of the contentions raised by the learned Counsel for the parties, since first respondent is interested in early disposal of the case, on condition of the petitioner surrendering before the learned II Additional Judicial First Class Magistrate, Machiplipatnam in CC No.129 of 2003 within a period of five weeks from today, and on his executing a bond for Rs.25,000/- (Rupees twenty five thousand only) with two sureties in a like sum each to the satisfaction of the learned Magistrate, the Non-bailable Warrant ordered against him shall stand recalled. In the meanwhile, the Non-bailable Warrant issued against the petitioner by the learned Magistrate shall remain suspended for a period of five weeks. In the event of the petitioner not complying with the above conditions, this petition stands dismissed.

9. These two criminal petitions are disposed of accordingly.