Power Of Attorney Holder Of Accused Cannot Maintain Petition Under Section 482 CrPC – Karnataka High Court

Justice M Nagaprasanna was hearing a petition filed under Articles 226 and 227 of the Constitution read with Section 482 CrPC by the Petitioners who were residing in London through their Power of Attorney holder.

The Court while noting the Petition was filed by the power of attorney holder of the accused, opined –

"I hold that the present petition filed by the power of attorney holder of the accused, without seeking any permission at the hands of this Court, and without even narrating in the petition that he is personally aware of the facts of the case, the writ petition filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C. is per se not maintainable, as the accused cannot be represented by a power of attorney holder and thus, maintain the subject petition."

In this case, the Petitioners were accused under Sections 406, 419, 420, 380, 384, 389, and 506 read with Section 34 IPC. The Petitioners were daughter and mother and were accused nos. 1 and 2 respectively. The 5^th Respondent–Husband had registered a complaint for the aforesaid offences however, a transit bail was granted to the Petitioners by a Court of Kolkata.

It was alleged by the complainant that the 1^st Petitioner after marriage had taken all the jewelry of his mother stating that she requires them for a photo shoot as she liked ethnic Indian jewels and had not returned the same. The further allegation was that an amount of Rs.7.5 crores was transferred to the account of the 1st petitioner as on deceit she has induced the 5th respondent to shell out with the money on the ground that a property is being purchased in their joint names.

The complainant also alleged that the Petitioners were not even Muslims and had posed themselves as Muslims but they were in fact Christians.

Senior Counsel Mr. Vivek Reddy appeared for the 5^th Respondent – Husband – Complainant, Counsel Mr. S. Ajesh Kumar appeared for the Petitioners, while Counsel Ms. K.P.Yashoda appeared for the Respondents 1 to 3.

The Senior Counsel Mr. Reddy argued before the Court that the Writ Petition filed under Articles 226 and 227 of the Constitution read with Section 482 CrPC was not maintainable as the Power of Attorney holder filed it and not the Petitioners.

The three issues which were dealt with by the Court were –

i) Whether the subject writ petition filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C. is maintainable at the hands of a power of attorney holder of an accused.

ii) Whether the writ petition suffers from suppression of material facts entailing dismissal of the petition.

iii) Whether in the facts of the case the offences alleged would meet their ingredients.

• First issue

The Bench noted whether the Petition is maintainable or otherwise formed a threshold bar for entertaining the Petition or considering any other submission.

The Court also noted that there was no averment in the entire petition that the power of attorney holder was aware of the facts of the case. In this context, the Bench further added –

"There being no averment to the effect that the power of attorney holder has full knowledge of what is being filed and the reason for presenting the petition by the said power of attorney holder, notwithstanding the fact that it is filed invoking writ jurisdiction of this Court as an amalgam to Section 482 of the Cr.P.C., the writ petition would not become maintainable."

The Bench also held that the Constitutional Courts have consistently taken a view that the petition under Section 482 CrPC by a power of attorney holder is not maintainable.

The Court placed reliance on Amrinder Singh v. State of NCT of Delhi, T.C.Mathai and Another v. The District & Sessions Judge, Thiruvananthapuram, Sarabjit Singh v. State of Punjab and Others, Naveed Akthar Sait v. State of Kerala, and observed –

"On a coalesce of the judgments so rendered by the Constitutional Courts, what can be unmistakably gathered is that the power of attorney holder of an accused cannot maintain a petition be it under Article 226 or 227 of the Constitution of India read with Section 482 of the Cr.P.C. or Criminal Petition under Section 482 Cr.P.C."

• Second Issue

The Court referred to the chain of events qua their dates while dealing with the second issue and held that all the events and happenings from 19-11-2021 till the date of filing of the Petition with the High Court have been completely suppressed by the Petitioners.

The Bench thus, observed, "Therefore, there can be no doubt that the petitioners are guilty of approaching this Court with unclean hands and such petitions should be thrown to the winds by imposition of exemplary costs. If there is no candid disclosure of relevant and material facts or the petitioners are guilty of misleading the Court, the petition is to be dismissed at the threshold without considering the merit of the claim."

The Court placed reliance on Prestige Lights Ltd. v. State Bank of India and noted that the case is to meet its dismissal with the imposition of exemplary costs as the Petitioners invoked the jurisdiction of this Court both under Articles 226 and 227 of the Constitution of India and Section 482 of the Cr.P.C. with unclean hands.

• Third Issue

The Bench refused to deal with the third issue since Issues (i) and (ii) were answered in negative against the Petitioners and held –

"In the light of point Nos.(i) and (ii) having been answered in the negative against the petitioners, the other point with regard to merits of the matter need not be gone into, as both the points act as a threshold bar for entertaining the petition and the doors of this Court cannot be considered to be open or even ajar to the petitioners, but they are closed. Therefore, point No.(iii) is not answered."

In the light of these observations, the Court dismissed the Petition with an exemplary cost of Rs. 1,00,000 to be paid by the Petitioners to the High Court Legal Services Authority.