JIMMY JAHANGIR MADAN versus BOLLY CARIYAPPA HINDLEY (D) BY LRS.

Citation: [2004] SUPP. 5 S.C.R. 955 · Decided: 04-11-2004 · Supreme Court of India · Bench: B.N. AGRAWAL · Disposal: Appeal(s) allowed
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Judgment (excerpt)

JIMMY JAHANGIR MADAN 
A 
v. 
BOLLY .CARIYAPPA HINDLEY (D) BY LRS. 
NOVEMBER 4, 2004 
[B.N. AGRAWAL AND H.K. SEMA, JJ.] 
B 
Code of Criminal Procedure, 1973: 
s.302 read with s.2(q)-Permission to continue prosecution-Death of 
complainant during trial-Power of attorney holders of the heirs filing C 
applications u/s 302 f1Jr permission to continue prosecution-Held, permission 
can be granted only if it is sought by the person who is entitled to continue 
the prosecution and not by the power of attorney holders-Applications 
dismissed with liberty to the heirs to make applications themselves as indicated 
in the order-Advocates Act, 1961-s.32-Negotiable Instruments Act, 1881- D 
s.138. 
In a complaint case under s.138 of the Negotiable Instruments Act, 
1881, on the death of the complainant during trial the power of attorney 
holders of the legal heirs of the deceased complainant filed petitions under 
s.302 of the Code of Criminal Procedure, 1973 for allowing them to E 
continue the prosecution. The trial court allowed the petitions, and the 
High Court upheld the order. 
In the appeals filed by the accused it was contended that power of 
attorney holders had no right to file the applications under s.302 of the F 
Code, and as such the applications were not maintainable. 
Allowing the appeals, the Court 
HELD: 1.1. In view of section 302 read with Section 2(q) of the Code 
of Criminal Procedure, 1973, the prayer to continue the prosecution can G 
be made either by a legally qualified person, who is authorized to practice 
in the court under the Advocates Act, or by any other person, including a 
power of attorney holder, in which eventuality such permission can be 
grantt!'d by the court only if it is sought by the person who is entitled to 
955 
H 
956 
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R. 
A continue the prosecution and not by the power of attorney holder. Under 
s.302 of the Code, a person who is entitled to continue the prosecution, is 
required to make an application himself, but, instead of taking steps 
personally, a party can be represented through a pleader. Power of 
attorney holder can represent the party concerned in case permission for 
B such representation is sought from the court by the person concerned and 
granted by it But where no such permission is sought by a party who has 
right to continue the prosecution, power of attorney holder cannot be 
allowed to represent the party concerned. (961-E-H; 962-A) 
T.C. 
Mathai and Anr. v. District and Sessions Judge, 
C Thirvananthapuram, Kera/a, (1999) 3 SCC 614 and Ashwin Nanubhai Vyas 
v. State of Maharashtra and Anr., (1967) 1 SCR 8()_7, relied on. 
1.2. In the instant case, neither heirs of the complainant filed petition 
under s.302 of the Code to continue the prosecution nor any permission 
was sought by them from the competent court that they should be allowed 
D to continue the prosecution through their power of attorney holders; rather 
the prayer was made by the power of attorney holders, which is not 
permissible under law. Therefore, the trial court was not justified in 
allowing the petitions under s.302 of the Code filed by the power of 
attorney holders. The orders of the trial court and the High Court are set 
E aside. However, the heirs would be at liberty either to make application 
themselves before the court concerned to continue the prosecution or apply 
to the court to grant permission to them to authorize the power of attorney 
holders to continue the prosecution on their behalf. [962-B-D) 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 
F 
1222-1223 of 2002. 
• 
From the Judgment and Order dated 10.8.2001 of the Kamataka High 
Court in Crl. R.P. Nos. 909 and 910 of 1998. 
Dhruv Mehta, Ms. Shalini Gupta and Mohit Chaudhry for Mis K.L. 
G Mehta & Co. for the Appellant. 
H 
K.R. Chaudhury, Sr. Joshua H. Samueh and Rakesh K. Sharma with 
him for the Respondents. 
The Judgment of the Court was delivered by 
r-
JIMMY JAHANGIRMADAN v. BOLLY CARIYAPPA HINDLEY [B.N. AGRAWAL, J.] 957 
B.N. AGRA WAL, J. These appeals by special leave have been filed A 
against judgment rendered by Karnataka High Court in revision applications 
upholding order passed by the Additional Chief Metropolitan Magistrate, 
Bangalore, in two complaint cases whereby petitions filed under Section 302 
of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the 
Code') for allowing power of attorney holders of heirs of the original B 
complainan
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