K. Subba Rao Etc. Vs. State

Decided On : Jul-05-1978

Court : Karnataka

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			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Mohan Shantanagoudar, J] Compensation  Pecuniary advantage  Question whether the amount received under Mediclaim policy is deductable out of total compensation? Held, The insurance money is by virtue of a contractual relationship between the deceased/injured and the insurance company and is payable to the legal heirs of the deceased/injured in terms of the contract. Such money cannot be said to have been received by the heirs/injured only on account of the accidental death of the deceased/accidental injuries of the claimant, but truly it is a fruit of the premium paid by the deceased during his life time/injured. The deceased/injured would have bought the insurance policy as an act of his prudence to confer benefit either to himself or to his heirs in case of death. In the case of Mediclaim policy, the amount is receivable by the claimant irrespective of accidental death or accidental injuries, even if the concerned person meets with the natural death or on the maturity of the insurance policy. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death or accidental injuries, with the pecuniary advantage which from whatever source to him by reason of the death/accidental injuries. In other words, it is the balancing of loss and gain of the claimant occasioned by the accident. But, this has to change its colour to the extent a statute intends to do. Thus, it has to be interpreted in the light of the provisions of Motor Vehicles Act. It is very clear that the Act delivers compensation to the claimant only on account of accidental injury or death and not on account of any other form of death. Thus, the pecuniary advantage accruing in this Act has to be deciphered, correlating with the accidental death/injuries. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act. If the pecuniary advantage resulting from death i.e., interpreted as pecuniary advantage coming under all forms of death, then it will include all the assets movable, immovable, shares, Bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets, including what is bequeathed by the deceased etc., By such interpretation, the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability to pay compensation. Such interpretation goes against the spirit of the Motor Vehicles Act. Under Motor Vehicles Act, whatever, pecuniary advantage is received by the claimant from whatever source, would only mean which comes to the claimant on account of the accidental death/injuries only and not other form of death/illness. Thus, it would not include that which claimant receives on account of other forms of death/illness, which he would have received even apart from accidental death/injuries. Such pecuniary advantage would have no correlation to the accidental death, for which compensation is computed. Any amount received or receivable not only on account of accidental death or accidental injuries but also that would have come to the claimant even otherwise, could not be construed to be a pecuniary advantage, liable for deduction. Thus, the Mediclaim amount received by the claimant cannot be deducted from out of the total compensation to be paid to the claimant. The amount received by the claimant under Mediclaim policy would not come within the periphery of Motor Vehicles Act to be termed as pecuniary advantage liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any correlation. The insured (deceased/injured) contributes his own money for which he receives the amount, has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under M.V. Act is on account of injury accidental or accidental death, without making any contribution towards it. If if is so, the fruits of the amount received through contribution of the insured cannot be deducted out of the amount receivable under M.V. Act. It is to be noted that the compensation payable under M.V. Act is statutory, while the amount receivable under the Life Insurance Policy or Mediclaim Policy is contractual. However, where the employer insures his employee as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. This is because, the employee receives the amount without his contribution. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. Section 168; Accident Claim  Compensation  Claimant suffered comminute segmental fracture of shaft upper 3rd right femur with posterior cruciate ligament injury on the right knee  Inpatient in Hospital for 11 days and underwent two surgeries with internal fixations  Tribunal in all awarded Rs.61,000/- - in addition Rs.5,000/- was awarded towards incidental charges  No amount was awarded towards medical expenses because the claimant got reimbursement of medical expenses under a Mediclaim policy  Medical expenses was Rs.1,22,300/- - In appeal, held, the amount received under Medical expenses should not be deducted. Accordingly the claimant was awarded Rs.1,22,300/- towards medical expenses and further a sum of Rs.15,000/- was awarded towards conveyance, nourishment and other incidental expenses totalling to Rs. 2,45,000/- with interest at 6% p.a. on the enhanced compensation -  Section 317 of the Code of Criminal Procedure, 1973 reads as follows :317 (1) .At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.',
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			'judgement' => 'ORDER<p style="text-align: justify;">M.S. Nesargi, J.</p><p style="text-align: justify;">1. These petitions have come up for admission and orders on I. A. I. filed in both the cases.</p><p style="text-align: justify;">2. The petitions are admitted and by consent of advocates on both sides, they are taken up for final hearing.</p><p style="text-align: justify;">3. As common question of law arises in both these petitions, they are disposed of by a common order.</p><p style="text-align: justify;">4. The petitioner in criminal revision petition No. 247 of 1978 was the accused in C, C. No. 915 of 1976, in the court of the Metropolitan Magistrate (III Court), Bangalore City. The petitioner in criminal revision petition No. 248 of 1978 was the accused in C. C. No. 1304 of 1976 in the same court.</p><p style="text-align: justify;">5. On 25-6-1976, Sri J. Joseph, advocate filed his memo of appearance on behalf of the petitioner in criminal revision petition No. 247 of 1978 and got him enlarged on bail. On 24-6-1978 one witness for the prosecution was present. The petitioner in criminal revision petition No. 247 of 1978 was not present and Sri Joseph filed an application under Section 317 of the Code of Criminal Procedure praying for dispensation of the attendance of the said petitioner and requesting to proceed with the trial in the absence of the said petitioner. The learned Magistrate passed the following order :</p><p style="text-align: justify;">C.W. 8 present. Since accused is absent C. W. 8 cannot be examined. Sri J. J. files application u/s. 317 Cr.P.C. No vakalath is filed. The witness is present exemption cannot be granted. Hail is cancelled. Issue N. B. W. to accused by 6-7-78. Issue fresh summons to C. Ws. 8 and 12....</p><p style="text-align: justify;">This is the order challenged in criminal revision petition No. 247 of 1978.</p><p style="text-align: justify;">6. In criminal revision petition No. 248 of 1978, Sri Joseph, the learned advocate filed his memo of appearance on behalf of the said petitioner and two others on 30-8-1976 and got them enlarged on bail. On 25-6-1978, the petitioner was absent. C. W. 3 was present. Sri Joseph filed an application under Section 317 of the Code of Criminal Procedure praying for dispensation of the attendance of the petitioner and requesting the court to proceed with the trial in his absence. The learned Magistrate passed the following order:</p><p style="text-align: justify;">A-l to A-3 absent. C. W. 3 present, C.W. 2 served and absent. Sri J, J. files application u/s. 317 Cri. P. C. for exempting A-l to A-3 from appearance. At this stage A4 present. Sri J. J. submits that the other accused are to arrive by bus and the matter may be taken up at later stage. When the case was called at 12-30 p. m., again only A-2 appeared in Court with A-l, C W.-2 is also present. It is 1976 matter. Sri J. J., has not filed Vakalath for accused persons. Hence, C- Ws. 2 and 3 cannot be examined. There is no reason for granting exemption to A-3. Added on to it Sri J. J. who has filed the application is not holding special vakalath for A-3. Hence the application for exemption is rejected. The bail of A-3 cancelled. Issue notice to his surety and N. B. W., against him. Bind over C. W. 2 and C. W. 3. call on 7-7-78.</p><p style="text-align: justify;">7. A-3 mentioned in the afore narrated order is the petitioner in criminal revision petition No. 248 of 1978.</p><p style="text-align: justify;">8. When it was pointed out to Sri Joseph that the orders impugned will fall within the ambit of interlocutory orders mentioned in Section 397 (2) of the Code of Criminal Procedure, he submitted that this Court may exercise its inherent powers under Section 482 of the Code of Criminal Procedure and dispose of these matters as the orders in question amount to abuse of process of Court in view of the reasoning of the learned Magistrate that a vakalath or a special vakalath must be filed before invoking the provisions o Section 317 of the Code of Criminal Procedure.</p><p style="text-align: justify;">9. Sri Joseph argued that the question involved in these two petitions arises almost daily in the courts of the Magistrates and as there is no decision of this Court covering this aspect of the matter, the advocates and accused are facing great difficulty. In support of his contention that no vakalath is necessary to be filed when a pleader or an advocate represents for an accused in a criminal case, he placed reliance on the decision in The State of Madhya Pradesh v. Lohra (1975 Cri LJ 1808) (Madh Pra). It has been held therein that no vakalathnama is necessary for pleading and acting in criminal proceedings and advocate's own declaration of his being authorised by accused is sufficient.</p><p style="text-align: justify;">10. Though the order in criminal revision petition No. 247 of 1978 does not in so many words make it appear that because Sri Joseph had not filed a vakalathnama on behalf of the petitioner therein, the Magistrate found himself unable to grant exemption under Section 317 of the Code of Criminal Procedure, the order impugned in criminal revision petition No, 248 of 1978 makes this fact abundantly clear because the learned Magistrate has specifically observed that as Sri Joseph did not hold a special vakalathnama for the petitioner therein, no exemption could be granted. Section 317 of the Code of Criminal Procedure, 1973 reads as follows :</p><p style="text-align: justify;">317 (1) . At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.</p><p style="text-align: justify;">(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and fur reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.</p><p style="text-align: justify;">11. Now the question is whether an advocate or a pleader appearing on behalf of accused in a criminal case in the court of the Magistrate is or is not in law required to file a vakalathnama.</p><p style="text-align: justify;">Rule 6 in Chapter V of the Karnataka Criminal Rules of Practice, 1968 reads as follows :</p><p style="text-align: justify;">6 (1) Every pleader as defined under Section 4 (r) of the Code appearing for the prosecution in any criminal proceedings other than criminal appeals shall file in Court a vakalatnama from his client authorising him so to appear. In all criminal appeals such pleader may file a memorandum of appearance instead of a vakalatnama.</p><p style="text-align: justify;">(2) Every such pleader defending an accused person in any criminal proceedings is any Court shall 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.</p><p style="text-align: justify;">12. A plain reading of the aforementioned Sub-rule (2) shows that a memorandum of appearance containing a declaration shall be filed by a pleader defending an accused person. Sub-rule (2) is in contrast to Sub-rule (1) because Sub-rule (1) provides that a pleader appearing for the prosecution in any criminal proceedings other than criminal appeal, shall file a vakalathnama from his client authorising him so to appear and in all criminal appeals such pleader may file a memorandum of appearance instead of vakalathnama.</p><p style="text-align: justify;">13. What is clear from the above is that if a pleader or an advocate appears to conduct prosecution in a trial court, he has got to file a vakalatnama and if he appears in criminal appeals, he may file a memorandum of appearance, while if a pleader or an advocate appears on behalf of an accused, he shall file a memorandum of appearance containing a declaration. Therefore, I have no doubt in my mind that filing of a vakalatnama on behalf of an accused is dispensed with and filing of a memorandum of appearance containing declaration, by a pleader that he has been duly instructed to appear by or on behalf of the accused party whom he claims to represent, shall be done.</p><p style="text-align: justify;">14. This rule appears to have been overlooked by the learned Magistrate while giving his reasoning that a vakalatnama or a special vakalatnama was not held by Sri Joseph in these two petitions and therefore exemption could not be granted.</p><p style="text-align: justify;">15. It may be made clear that these two petitions are being disposed of in exercise of the inherent powers of this Court under Section 482 of the Code of Criminal Procedure in order to prevent the abuse of process of court as, in my opinion, the orders in question are hit by Section 397 (8) of the Code of Criminal Procedure.</p><p style="text-align: justify;">16. In the result, these two petition are allowed and the orders impugned are set aside. The learned Magistrate is directed to consider the applications filed under Section S17 of the Code of Criminal Procedure on merit mod dispose of the same.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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[C.A. No. 59/1988]Section 168; [Mohan Shantanagoudar, J] Compensation  Pecuniary advantage  Question whether the amount received under Mediclaim policy is deductable out of total compensation? Held, The insurance money is by virtue of a contractual relationship between the deceased/injured and the insurance company and is payable to the legal heirs of the deceased/injured in terms of the contract. Such money cannot be said to have been received by the heirs/injured only on account of the accidental death of the deceased/accidental injuries of the claimant, but truly it is a fruit of the premium paid by the deceased during his life time/injured. The deceased/injured would have bought the insurance policy as an act of his prudence to confer benefit either to himself or to his heirs in case of death. In the case of Mediclaim policy, the amount is receivable by the claimant irrespective of accidental death or accidental injuries, even if the concerned person meets with the natural death or on the maturity of the insurance policy. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death or accidental injuries, with the pecuniary advantage which from whatever source to him by reason of the death/accidental injuries. In other words, it is the balancing of loss and gain of the claimant occasioned by the accident. But, this has to change its colour to the extent a statute intends to do. Thus, it has to be interpreted in the light of the provisions of Motor Vehicles Act. It is very clear that the Act delivers compensation to the claimant only on account of accidental injury or death and not on account of any other form of death. Thus, the pecuniary advantage accruing in this Act has to be deciphered, correlating with the accidental death/injuries. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act. If the pecuniary advantage resulting from death i.e., interpreted as pecuniary advantage coming under all forms of death, then it will include all the assets movable, immovable, shares, Bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets, including what is bequeathed by the deceased etc., By such interpretation, the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability to pay compensation. Such interpretation goes against the spirit of the Motor Vehicles Act. Under Motor Vehicles Act, whatever, pecuniary advantage is received by the claimant from whatever source, would only mean which comes to the claimant on account of the accidental death/injuries only and not other form of death/illness. Thus, it would not include that which claimant receives on account of other forms of death/illness, which he would have received even apart from accidental death/injuries. Such pecuniary advantage would have no correlation to the accidental death, for which compensation is computed. Any amount received or receivable not only on account of accidental death or accidental injuries but also that would have come to the claimant even otherwise, could not be construed to be a pecuniary advantage, liable for deduction. Thus, the Mediclaim amount received by the claimant cannot be deducted from out of the total compensation to be paid to the claimant. The amount received by the claimant under Mediclaim policy would not come within the periphery of Motor Vehicles Act to be termed as pecuniary advantage liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any correlation. The insured (deceased/injured) contributes his own money for which he receives the amount, has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under M.V. Act is on account of injury accidental or accidental death, without making any contribution towards it. If if is so, the fruits of the amount received through contribution of the insured cannot be deducted out of the amount receivable under M.V. Act. It is to be noted that the compensation payable under M.V. Act is statutory, while the amount receivable under the Life Insurance Policy or Mediclaim Policy is contractual. However, where the employer insures his employee as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. This is because, the employee receives the amount without his contribution. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. Section 168; Accident Claim  Compensation  Claimant suffered comminute segmental fracture of shaft upper 3rd right femur with posterior cruciate ligament injury on the right knee  Inpatient in Hospital for 11 days and underwent two surgeries with internal fixations  Tribunal in all awarded Rs.61,000/- - in addition Rs.5,000/- was awarded towards incidental charges  No amount was awarded towards medical expenses because the claimant got reimbursement of medical expenses under a Mediclaim policy  Medical expenses was Rs.1,22,300/- - In appeal, held, the amount received under Medical expenses should not be deducted. Accordingly the claimant was awarded Rs.1,22,300/- towards medical expenses and further a sum of Rs.15,000/- was awarded towards conveyance, nourishment and other incidental expenses totalling to Rs. 2,45,000/- with interest at 6% p.a. on the enhanced compensation -  Section 317 of the Code of Criminal Procedure, 1973 reads as follows :317 (1) .At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.',
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		'judge' => 'M.S. Nesargi, J.',
		'judgement' => 'ORDER<p style="text-align: justify;">M.S. Nesargi, J.</p><p style="text-align: justify;">1. These petitions have come up for admission and orders on I. A. I. filed in both the cases.</p><p style="text-align: justify;">2. The petitions are admitted and by consent of advocates on both sides, they are taken up for final hearing.</p><p style="text-align: justify;">3. As common question of law arises in both these petitions, they are disposed of by a common order.</p><p style="text-align: justify;">4. The petitioner in criminal revision petition No. 247 of 1978 was the accused in C, C. No. 915 of 1976, in the court of the Metropolitan Magistrate (III Court), Bangalore City. The petitioner in criminal revision petition No. 248 of 1978 was the accused in C. C. No. 1304 of 1976 in the same court.</p><p style="text-align: justify;">5. On 25-6-1976, Sri J. Joseph, advocate filed his memo of appearance on behalf of the petitioner in criminal revision petition No. 247 of 1978 and got him enlarged on bail. On 24-6-1978 one witness for the prosecution was present. The petitioner in criminal revision petition No. 247 of 1978 was not present and Sri Joseph filed an application under Section 317 of the Code of Criminal Procedure praying for dispensation of the attendance of the said petitioner and requesting to proceed with the trial in the absence of the said petitioner. The learned Magistrate passed the following order :</p><p style="text-align: justify;">C.W. 8 present. Since accused is absent C. W. 8 cannot be examined. Sri J. J. files application u/s. 317 Cr.P.C. No vakalath is filed. The witness is present exemption cannot be granted. Hail is cancelled. Issue N. B. W. to accused by 6-7-78. Issue fresh summons to C. Ws. 8 and 12....</p><p style="text-align: justify;">This is the order challenged in criminal revision petition No. 247 of 1978.</p><p style="text-align: justify;">6. In criminal revision petition No. 248 of 1978, Sri Joseph, the learned advocate filed his memo of appearance on behalf of the said petitioner and two others on 30-8-1976 and got them enlarged on bail. On 25-6-1978, the petitioner was absent. C. W. 3 was present. Sri Joseph filed an application under Section 317 of the Code of Criminal Procedure praying for dispensation of the attendance of the petitioner and requesting the court to proceed with the trial in his absence. The learned Magistrate passed the following order:</p><p style="text-align: justify;">A-l to A-3 absent. C. W. 3 present, C.W. 2 served and absent. Sri J, J. files application u/s. 317 Cri. P. C. for exempting A-l to A-3 from appearance. At this stage A4 present. Sri J. J. submits that the other accused are to arrive by bus and the matter may be taken up at later stage. When the case was called at 12-30 p. m., again only A-2 appeared in Court with A-l, C W.-2 is also present. It is 1976 matter. Sri J. J., has not filed Vakalath for accused persons. Hence, C- Ws. 2 and 3 cannot be examined. There is no reason for granting exemption to A-3. Added on to it Sri J. J. who has filed the application is not holding special vakalath for A-3. Hence the application for exemption is rejected. The bail of A-3 cancelled. Issue notice to his surety and N. B. W., against him. Bind over C. W. 2 and C. W. 3. call on 7-7-78.</p><p style="text-align: justify;">7. A-3 mentioned in the afore narrated order is the petitioner in criminal revision petition No. 248 of 1978.</p><p style="text-align: justify;">8. When it was pointed out to Sri Joseph that the orders impugned will fall within the ambit of interlocutory orders mentioned in Section 397 (2) of the Code of Criminal Procedure, he submitted that this Court may exercise its inherent powers under Section 482 of the Code of Criminal Procedure and dispose of these matters as the orders in question amount to abuse of process of Court in view of the reasoning of the learned Magistrate that a vakalath or a special vakalath must be filed before invoking the provisions o Section 317 of the Code of Criminal Procedure.</p><p style="text-align: justify;">9. Sri Joseph argued that the question involved in these two petitions arises almost daily in the courts of the Magistrates and as there is no decision of this Court covering this aspect of the matter, the advocates and accused are facing great difficulty. In support of his contention that no vakalath is necessary to be filed when a pleader or an advocate represents for an accused in a criminal case, he placed reliance on the decision in The State of Madhya Pradesh v. Lohra (1975 Cri LJ 1808) (Madh Pra). It has been held therein that no vakalathnama is necessary for pleading and acting in criminal proceedings and advocate's own declaration of his being authorised by accused is sufficient.</p><p style="text-align: justify;">10. Though the order in criminal revision petition No. 247 of 1978 does not in so many words make it appear that because Sri Joseph had not filed a vakalathnama on behalf of the petitioner therein, the Magistrate found himself unable to grant exemption under Section 317 of the Code of Criminal Procedure, the order impugned in criminal revision petition No, 248 of 1978 makes this fact abundantly clear because the learned Magistrate has specifically observed that as Sri Joseph did not hold a special vakalathnama for the petitioner therein, no exemption could be granted. Section 317 of the Code of Criminal Procedure, 1973 reads as follows :</p><p style="text-align: justify;">317 (1) . At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.</p><p style="text-align: justify;">(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and fur reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.</p><p style="text-align: justify;">11. Now the question is whether an advocate or a pleader appearing on behalf of accused in a criminal case in the court of the Magistrate is or is not in law required to file a vakalathnama.</p><p style="text-align: justify;">Rule 6 in Chapter V of the Karnataka Criminal Rules of Practice, 1968 reads as follows :</p><p style="text-align: justify;">6 (1) Every pleader as defined under Section 4 (r) of the Code appearing for the prosecution in any criminal proceedings other than criminal appeals shall file in Court a vakalatnama from his client authorising him so to appear. In all criminal appeals such pleader may file a memorandum of appearance instead of a vakalatnama.</p><p style="text-align: justify;">(2) Every such pleader defending an accused person in any criminal proceedings is any Court shall 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.</p><p style="text-align: justify;">12. A plain reading of the aforementioned Sub-rule (2) shows that a memorandum of appearance containing a declaration shall be filed by a pleader defending an accused person. Sub-rule (2) is in contrast to Sub-rule (1) because Sub-rule (1) provides that a pleader appearing for the prosecution in any criminal proceedings other than criminal appeal, shall file a vakalathnama from his client authorising him so to appear and in all criminal appeals such pleader may file a memorandum of appearance instead of vakalathnama.</p><p style="text-align: justify;">13. What is clear from the above is that if a pleader or an advocate appears to conduct prosecution in a trial court, he has got to file a vakalatnama and if he appears in criminal appeals, he may file a memorandum of appearance, while if a pleader or an advocate appears on behalf of an accused, he shall file a memorandum of appearance containing a declaration. Therefore, I have no doubt in my mind that filing of a vakalatnama on behalf of an accused is dispensed with and filing of a memorandum of appearance containing declaration, by a pleader that he has been duly instructed to appear by or on behalf of the accused party whom he claims to represent, shall be done.</p><p style="text-align: justify;">14. This rule appears to have been overlooked by the learned Magistrate while giving his reasoning that a vakalatnama or a special vakalatnama was not held by Sri Joseph in these two petitions and therefore exemption could not be granted.</p><p style="text-align: justify;">15. It may be made clear that these two petitions are being disposed of in exercise of the inherent powers of this Court under Section 482 of the Code of Criminal Procedure in order to prevent the abuse of process of court as, in my opinion, the orders in question are hit by Section 397 (8) of the Code of Criminal Procedure.</p><p style="text-align: justify;">16. In the result, these two petition are allowed and the orders impugned are set aside. The learned Magistrate is directed to consider the applications filed under Section S17 of the Code of Criminal Procedure on merit mod dispose of the same.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'casename' => 'K. Subba Rao Etc. Vs. State',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Mohan Shantanagoudar, J] Compensation  Pecuniary advantage  Question whether the amount received under Mediclaim policy is deductable out of total compensation? Held, The insurance money is by virtue of a contractual relationship between the deceased/injured and the insurance company and is payable to the legal heirs of the deceased/injured in terms of the contract. Such money cannot be said to have been received by the heirs/injured only on account of the accidental death of the deceased/accidental injuries of the claimant, but truly it is a fruit of the premium paid by the deceased during his life time/injured. The deceased/injured would have bought the insurance policy as an act of his prudence to confer benefit either to himself or to his heirs in case of death. In the case of Mediclaim policy, the amount is receivable by the claimant irrespective of accidental death or accidental injuries, even if the concerned person meets with the natural death or on the maturity of the insurance policy. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death or accidental injuries, with the pecuniary advantage which from whatever source to him by reason of the death/accidental injuries. In other words, it is the balancing of loss and gain of the claimant occasioned by the accident. But, this has to change its colour to the extent a statute intends to do. Thus, it has to be interpreted in the light of the provisions of Motor Vehicles Act. It is very clear that the Act delivers compensation to the claimant only on account of accidental injury or death and not on account of any other form of death. Thus, the pecuniary advantage accruing in this Act has to be deciphered, correlating with the accidental death/injuries. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act. If the pecuniary advantage resulting from death i.e., interpreted as pecuniary advantage coming under all forms of death, then it will include all the assets movable, immovable, shares, Bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets, including what is bequeathed by the deceased etc., By such interpretation, the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability to pay compensation. Such interpretation goes against the spirit of the Motor Vehicles Act. Under Motor Vehicles Act, whatever, pecuniary advantage is received by the claimant from whatever source, would only mean which comes to the claimant on account of the accidental death/injuries only and not other form of death/illness. Thus, it would not include that which claimant receives on account of other forms of death/illness, which he would have received even apart from accidental death/injuries. Such pecuniary advantage would have no correlation to the accidental death, for which compensation is computed. Any amount received or receivable not only on account of accidental death or accidental injuries but also that would have come to the claimant even otherwise, could not be construed to be a pecuniary advantage, liable for deduction. Thus, the Mediclaim amount received by the claimant cannot be deducted from out of the total compensation to be paid to the claimant. The amount received by the claimant under Mediclaim policy would not come within the periphery of Motor Vehicles Act to be termed as pecuniary advantage liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any correlation. The insured (deceased/injured) contributes his own money for which he receives the amount, has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under M.V. Act is on account of injury accidental or accidental death, without making any contribution towards it. If if is so, the fruits of the amount received through contribution of the insured cannot be deducted out of the amount receivable under M.V. Act. It is to be noted that the compensation payable under M.V. Act is statutory, while the amount receivable under the Life Insurance Policy or Mediclaim Policy is contractual. However, where the employer insures his employee as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. This is because, the employee receives the amount without his contribution. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. Section 168; Accident Claim  Compensation  Claimant suffered comminute segmental fracture of shaft upper 3rd right femur with posterior cruciate ligament injury on the right knee  Inpatient in Hospital for 11 days and underwent two surgeries with internal fixations  Tribunal in all awarded Rs.61,000/- - in addition Rs.5,000/- was awarded towards incidental charges  No amount was awarded towards medical expenses because the claimant got reimbursement of medical expenses under a Mediclaim policy  Medical expenses was Rs.1,22,300/- - In appeal, held, the amount received under Medical expenses should not be deducted. Accordingly the claimant was awarded Rs.1,22,300/- towards medical expenses and further a sum of Rs.15,000/- was awarded towards conveyance, nourishment and other incidental expenses totalling to Rs. 2,45,000/- with interest at 6% p.a. on the enhanced compensation -  Section 317 of the Code of Criminal Procedure, 1973 reads as follows :317 (1) .At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.',
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			'court' => 'Karnataka',
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			'judge' => 'M.S. Nesargi, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.S. Nesargi, J.</p><p style="text-align: justify;">1. These petitions have come up for admission and orders on I. A. I. filed in both the cases.</p><p style="text-align: justify;">2. The petitions are admitted and by consent of advocates on both sides, they are taken up for final hearing.</p><p style="text-align: justify;">3. As common question of law arises in both these petitions, they are disposed of by a common order.</p><p style="text-align: justify;">4. The petitioner in criminal revision petition No. 247 of 1978 was the accused in C, C. No. 915 of 1976, in the court of the Metropolitan Magistrate (III Court), Bangalore City. The petitioner in criminal revision petition No. 248 of 1978 was the accused in C. C. No. 1304 of 1976 in the same court.</p><p style="text-align: justify;">5. On 25-6-1976, Sri J. Joseph, advocate filed his memo of appearance on behalf of the petitioner in criminal revision petition No. 247 of 1978 and got him enlarged on bail. On 24-6-1978 one witness for the prosecution was present. The petitioner in criminal revision petition No. 247 of 1978 was not present and Sri Joseph filed an application under Section 317 of the Code of Criminal Procedure praying for dispensation of the attendance of the said petitioner and requesting to proceed with the trial in the absence of the said petitioner. The learned Magistrate passed the following order :</p><p style="text-align: justify;">C.W. 8 present. Since accused is absent C. W. 8 cannot be examined. Sri J. J. files application u/s. 317 Cr.P.C. No vakalath is filed. The witness is present exemption cannot be granted. Hail is cancelled. Issue N. B. W. to accused by 6-7-78. Issue fresh summons to C. Ws. 8 and 12....</p><p style="text-align: justify;">This is the order challenged in criminal revision petition No. 247 of 1978.</p><p style="text-align: justify;">6. In criminal revision petition No. 248 of 1978, Sri Joseph, the learned advocate filed his memo of appearance on behalf of the said petitioner and two others on 30-8-1976 and got them enlarged on bail. On 25-6-1978, the petitioner was absent. C. W. 3 was present. Sri Joseph filed an application under Section 317 of the Code of Criminal Procedure praying for dispensation of the attendance of the petitioner and requesting the court to proceed with the trial in his absence. The learned Magistrate passed the following order:</p><p style="text-align: justify;">A-l to A-3 absent. C. W. 3 present, C.W. 2 served and absent. Sri J, J. files application u/s. 317 Cri. P. C. for exempting A-l to A-3 from appearance. At this stage A4 present. Sri J. J. submits that the other accused are to arrive by bus and the matter may be taken up at later stage. When the case was called at 12-30 p. m., again only A-2 appeared in Court with A-l, C W.-2 is also present. It is 1976 matter. Sri J. J., has not filed Vakalath for accused persons. Hence, C- Ws. 2 and 3 cannot be examined. There is no reason for granting exemption to A-3. Added on to it Sri J. J. who has filed the application is not holding special vakalath for A-3. Hence the application for exemption is rejected. The bail of A-3 cancelled. Issue notice to his surety and N. B. W., against him. Bind over C. W. 2 and C. W. 3. call on 7-7-78.</p><p style="text-align: justify;">7. A-3 mentioned in the afore narrated order is the petitioner in criminal revision petition No. 248 of 1978.</p><p style="text-align: justify;">8. When it was pointed out to Sri Joseph that the orders impugned will fall within the ambit of interlocutory orders mentioned in Section 397 (2) of the Code of Criminal Procedure, he submitted that this Court may exercise its inherent powers under Section 482 of the Code of Criminal Procedure and dispose of these matters as the orders in question amount to abuse of process of Court in view of the reasoning of the learned Magistrate that a vakalath or a special vakalath must be filed before invoking the provisions o Section 317 of the Code of Criminal Procedure.</p><p style="text-align: justify;">9. Sri Joseph argued that the question involved in these two petitions arises almost daily in the courts of the Magistrates and as there is no decision of this Court covering this aspect of the matter, the advocates and accused are facing great difficulty. In support of his contention that no vakalath is necessary to be filed when a pleader or an advocate represents for an accused in a criminal case, he placed reliance on the decision in The State of Madhya Pradesh v. Lohra (1975 Cri LJ 1808) (Madh Pra). It has been held therein that no vakalathnama is necessary for pleading and acting in criminal proceedings and advocate's own declaration of his being authorised by accused is sufficient.</p><p style="text-align: justify;">10. Though the order in criminal revision petition No. 247 of 1978 does not in so many words make it appear that because Sri Joseph had not filed a vakalathnama on behalf of the petitioner therein, the Magistrate found himself unable to grant exemption under Section 317 of the Code of Criminal Procedure, the order impugned in criminal revision petition No, 248 of 1978 makes this fact abundantly clear because the learned Magistrate has specifically observed that as Sri Joseph did not hold a special vakalathnama for the petitioner therein, no exemption could be granted. Section 317 of the Code of Criminal Procedure, 1973 reads as follows :</p><p style="text-align: justify;">317 (1) . At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.</p><p style="text-align: justify;">(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and fur reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.</p><p style="text-align: justify;">11. Now the question is whether an advocate or a pleader appearing on behalf of accused in a criminal case in the court of the Magistrate is or is not in law required to file a vakalathnama.</p><p style="text-align: justify;">Rule 6 in Chapter V of the Karnataka Criminal Rules of Practice, 1968 reads as follows :</p><p style="text-align: justify;">6 (1) Every pleader as defined under Section 4 (r) of the Code appearing for the prosecution in any criminal proceedings other than criminal appeals shall file in Court a vakalatnama from his client authorising him so to appear. In all criminal appeals such pleader may file a memorandum of appearance instead of a vakalatnama.</p><p style="text-align: justify;">(2) Every such pleader defending an accused person in any criminal proceedings is any Court shall 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.</p><p style="text-align: justify;">12. A plain reading of the aforementioned Sub-rule (2) shows that a memorandum of appearance containing a declaration shall be filed by a pleader defending an accused person. Sub-rule (2) is in contrast to Sub-rule (1) because Sub-rule (1) provides that a pleader appearing for the prosecution in any criminal proceedings other than criminal appeal, shall file a vakalathnama from his client authorising him so to appear and in all criminal appeals such pleader may file a memorandum of appearance instead of vakalathnama.</p><p style="text-align: justify;">13. What is clear from the above is that if a pleader or an advocate appears to conduct prosecution in a trial court, he has got to file a vakalatnama and if he appears in criminal appeals, he may file a memorandum of appearance, while if a pleader or an advocate appears on behalf of an accused, he shall file a memorandum of appearance containing a declaration. Therefore, I have no doubt in my mind that filing of a vakalatnama on behalf of an accused is dispensed with and filing of a memorandum of appearance containing declaration, by a pleader that he has been duly instructed to appear by or on behalf of the accused party whom he claims to represent, shall be done.</p><p style="text-align: justify;">14. This rule appears to have been overlooked by the learned Magistrate while giving his reasoning that a vakalatnama or a special vakalatnama was not held by Sri Joseph in these two petitions and therefore exemption could not be granted.</p><p style="text-align: justify;">15. It may be made clear that these two petitions are being disposed of in exercise of the inherent powers of this Court under Section 482 of the Code of Criminal Procedure in order to prevent the abuse of process of court as, in my opinion, the orders in question are hit by Section 397 (8) of the Code of Criminal Procedure.</p><p style="text-align: justify;">16. In the result, these two petition are allowed and the orders impugned are set aside. The learned Magistrate is directed to consider the applications filed under Section S17 of the Code of Criminal Procedure on merit mod dispose of the same.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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	'Judgement' => array(
		'id' => '378018',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'K. Subba Rao Etc.',
		'authreffered' => '',
		'casename' => 'K. Subba Rao Etc. Vs. State',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 168; [Mohan Shantanagoudar, J] Compensation  Pecuniary advantage  Question whether the amount received under Mediclaim policy is deductable out of total compensation? Held, The insurance money is by virtue of a contractual relationship between the deceased/injured and the insurance company and is payable to the legal heirs of the deceased/injured in terms of the contract. Such money cannot be said to have been received by the heirs/injured only on account of the accidental death of the deceased/accidental injuries of the claimant, but truly it is a fruit of the premium paid by the deceased during his life time/injured. The deceased/injured would have bought the insurance policy as an act of his prudence to confer benefit either to himself or to his heirs in case of death. In the case of Mediclaim policy, the amount is receivable by the claimant irrespective of accidental death or accidental injuries, even if the concerned person meets with the natural death or on the maturity of the insurance policy. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death or accidental injuries, with the pecuniary advantage which from whatever source to him by reason of the death/accidental injuries. In other words, it is the balancing of loss and gain of the claimant occasioned by the accident. But, this has to change its colour to the extent a statute intends to do. Thus, it has to be interpreted in the light of the provisions of Motor Vehicles Act. It is very clear that the Act delivers compensation to the claimant only on account of accidental injury or death and not on account of any other form of death. Thus, the pecuniary advantage accruing in this Act has to be deciphered, correlating with the accidental death/injuries. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act. If the pecuniary advantage resulting from death i.e., interpreted as pecuniary advantage coming under all forms of death, then it will include all the assets movable, immovable, shares, Bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets, including what is bequeathed by the deceased etc., By such interpretation, the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability to pay compensation. Such interpretation goes against the spirit of the Motor Vehicles Act. Under Motor Vehicles Act, whatever, pecuniary advantage is received by the claimant from whatever source, would only mean which comes to the claimant on account of the accidental death/injuries only and not other form of death/illness. Thus, it would not include that which claimant receives on account of other forms of death/illness, which he would have received even apart from accidental death/injuries. Such pecuniary advantage would have no correlation to the accidental death, for which compensation is computed. Any amount received or receivable not only on account of accidental death or accidental injuries but also that would have come to the claimant even otherwise, could not be construed to be a pecuniary advantage, liable for deduction. Thus, the Mediclaim amount received by the claimant cannot be deducted from out of the total compensation to be paid to the claimant. The amount received by the claimant under Mediclaim policy would not come within the periphery of Motor Vehicles Act to be termed as pecuniary advantage liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any correlation. The insured (deceased/injured) contributes his own money for which he receives the amount, has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under M.V. Act is on account of injury accidental or accidental death, without making any contribution towards it. If if is so, the fruits of the amount received through contribution of the insured cannot be deducted out of the amount receivable under M.V. Act. It is to be noted that the compensation payable under M.V. Act is statutory, while the amount receivable under the Life Insurance Policy or Mediclaim Policy is contractual. However, where the employer insures his employee as against injury or death arising out of an accident, any amount received out of such insurance on the happening of such incidence may be an amount liable for deduction. This is because, the employee receives the amount without his contribution. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. Section 168; Accident Claim  Compensation  Claimant suffered comminute segmental fracture of shaft upper 3rd right femur with posterior cruciate ligament injury on the right knee  Inpatient in Hospital for 11 days and underwent two surgeries with internal fixations  Tribunal in all awarded Rs.61,000/- - in addition Rs.5,000/- was awarded towards incidental charges  No amount was awarded towards medical expenses because the claimant got reimbursement of medical expenses under a Mediclaim policy  Medical expenses was Rs.1,22,300/- - In appeal, held, the amount received under Medical expenses should not be deducted. Accordingly the claimant was awarded Rs.1,22,300/- towards medical expenses and further a sum of Rs.15,000/- was awarded towards conveyance, nourishment and other incidental expenses totalling to Rs. 2,45,000/- with interest at 6% p.a. on the enhanced compensation -  Section 317 of the Code of Criminal Procedure, 1973 reads as follows :317 (1) .At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.',
		'caseanalysis' => null,
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '1978-07-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'M.S. Nesargi, J.',
		'judgement' => 'ORDER<p style="text-align: justify;">M.S. Nesargi, J.</p><p style="text-align: justify;">1. These petitions have come up for admission and orders on I. A. I. filed in both the cases.</p><p style="text-align: justify;">2. The petitions are admitted and by consent of advocates on both sides, they are taken up for final hearing.</p><p style="text-align: justify;">3. As common question of law arises in both these petitions, they are disposed of by a common order.</p><p style="text-align: justify;">4. The petitioner in criminal revision petition No. 247 of 1978 was the accused in C, C. No. 915 of 1976, in the court of the Metropolitan Magistrate (III Court), Bangalore City. The petitioner in criminal revision petition No. 248 of 1978 was the accused in C. C. No. 1304 of 1976 in the same court.</p><p style="text-align: justify;">5. On 25-6-1976, Sri J. Joseph, advocate filed his memo of appearance on behalf of the petitioner in criminal revision petition No. 247 of 1978 and got him enlarged on bail. On 24-6-1978 one witness for the prosecution was present. The petitioner in criminal revision petition No. 247 of 1978 was not present and Sri Joseph filed an application under Section 317 of the Code of Criminal Procedure praying for dispensation of the attendance of the said petitioner and requesting to proceed with the trial in the absence of the said petitioner. The learned Magistrate passed the following order :</p><p style="text-align: justify;">C.W. 8 present. Since accused is absent C. W. 8 cannot be examined. Sri J. J. files application u/s. 317 Cr.P.C. No vakalath is filed. The witness is present exemption cannot be granted. Hail is cancelled. Issue N. B. W. to accused by 6-7-78. Issue fresh summons to C. Ws. 8 and 12....</p><p style="text-align: justify;">This is the order challenged in criminal revision petition No. 247 of 1978.</p><p style="text-align: justify;">6. In criminal revision petition No. 248 of 1978, Sri Joseph, the learned advocate filed his memo of appearance on behalf of the said petitioner and two others on 30-8-1976 and got them enlarged on bail. On 25-6-1978, the petitioner was absent. C. W. 3 was present. Sri Joseph filed an application under Section 317 of the Code of Criminal Procedure praying for dispensation of the attendance of the petitioner and requesting the court to proceed with the trial in his absence. The learned Magistrate passed the following order:</p><p style="text-align: justify;">A-l to A-3 absent. C. W. 3 present, C.W. 2 served and absent. Sri J, J. files application u/s. 317 Cri. P. C. for exempting A-l to A-3 from appearance. At this stage A4 present. Sri J. J. submits that the other accused are to arrive by bus and the matter may be taken up at later stage. When the case was called at 12-30 p. m., again only A-2 appeared in Court with A-l, C W.-2 is also present. It is 1976 matter. Sri J. J., has not filed Vakalath for accused persons. Hence, C- Ws. 2 and 3 cannot be examined. There is no reason for granting exemption to A-3. Added on to it Sri J. J. who has filed the application is not holding special vakalath for A-3. Hence the application for exemption is rejected. The bail of A-3 cancelled. Issue notice to his surety and N. B. W., against him. Bind over C. W. 2 and C. W. 3. call on 7-7-78.</p><p style="text-align: justify;">7. A-3 mentioned in the afore narrated order is the petitioner in criminal revision petition No. 248 of 1978.</p><p style="text-align: justify;">8. When it was pointed out to Sri Joseph that the orders impugned will fall within the ambit of interlocutory orders mentioned in Section 397 (2) of the Code of Criminal Procedure, he submitted that this Court may exercise its inherent powers under Section 482 of the Code of Criminal Procedure and dispose of these matters as the orders in question amount to abuse of process of Court in view of the reasoning of the learned Magistrate that a vakalath or a special vakalath must be filed before invoking the provisions o Section 317 of the Code of Criminal Procedure.</p><p style="text-align: justify;">9. Sri Joseph argued that the question involved in these two petitions arises almost daily in the courts of the Magistrates and as there is no decision of this Court covering this aspect of the matter, the advocates and accused are facing great difficulty. In support of his contention that no vakalath is necessary to be filed when a pleader or an advocate represents for an accused in a criminal case, he placed reliance on the decision in The State of Madhya Pradesh v. Lohra (1975 Cri LJ 1808) (Madh Pra). It has been held therein that no vakalathnama is necessary for pleading and acting in criminal proceedings and advocate's own declaration of his being authorised by accused is sufficient.</p><p style="text-align: justify;">10. Though the order in criminal revision petition No. 247 of 1978 does not in so many words make it appear that because Sri Joseph had not filed a vakalathnama on behalf of the petitioner therein, the Magistrate found himself unable to grant exemption under Section 317 of the Code of Criminal Procedure, the order impugned in criminal revision petition No, 248 of 1978 makes this fact abundantly clear because the learned Magistrate has specifically observed that as Sri Joseph did not hold a special vakalathnama for the petitioner therein, no exemption could be granted. Section 317 of the Code of Criminal Procedure, 1973 reads as follows :</p><p style="text-align: justify;">317 (1) . At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.</p><p style="text-align: justify;">(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and fur reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.</p><p style="text-align: justify;">11. Now the question is whether an advocate or a pleader appearing on behalf of accused in a criminal case in the court of the Magistrate is or is not in law required to file a vakalathnama.</p><p style="text-align: justify;">Rule 6 in Chapter V of the Karnataka Criminal Rules of Practice, 1968 reads as follows :</p><p style="text-align: justify;">6 (1) Every pleader as defined under Section 4 (r) of the Code appearing for the prosecution in any criminal proceedings other than criminal appeals shall file in Court a vakalatnama from his client authorising him so to appear. In all criminal appeals such pleader may file a memorandum of appearance instead of a vakalatnama.</p><p style="text-align: justify;">(2) Every such pleader defending an accused person in any criminal proceedings is any Court shall 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.</p><p style="text-align: justify;">12. A plain reading of the aforementioned Sub-rule (2) shows that a memorandum of appearance containing a declaration shall be filed by a pleader defending an accused person. Sub-rule (2) is in contrast to Sub-rule (1) because Sub-rule (1) provides that a pleader appearing for the prosecution in any criminal proceedings other than criminal appeal, shall file a vakalathnama from his client authorising him so to appear and in all criminal appeals such pleader may file a memorandum of appearance instead of vakalathnama.</p><p style="text-align: justify;">13. What is clear from the above is that if a pleader or an advocate appears to conduct prosecution in a trial court, he has got to file a vakalatnama and if he appears in criminal appeals, he may file a memorandum of appearance, while if a pleader or an advocate appears on behalf of an accused, he shall file a memorandum of appearance containing a declaration. Therefore, I have no doubt in my mind that filing of a vakalatnama on behalf of an accused is dispensed with and filing of a memorandum of appearance containing declaration, by a pleader that he has been duly instructed to appear by or on behalf of the accused party whom he claims to represent, shall be done.</p><p style="text-align: justify;">14. This rule appears to have been overlooked by the learned Magistrate while giving his reasoning that a vakalatnama or a special vakalatnama was not held by Sri Joseph in these two petitions and therefore exemption could not be granted.</p><p style="text-align: justify;">15. It may be made clear that these two petitions are being disposed of in exercise of the inherent powers of this Court under Section 482 of the Code of Criminal Procedure in order to prevent the abuse of process of court as, in my opinion, the orders in question are hit by Section 397 (8) of the Code of Criminal Procedure.</p><p style="text-align: justify;">16. In the result, these two petition are allowed and the orders impugned are set aside. The learned Magistrate is directed to consider the applications filed under Section S17 of the Code of Criminal Procedure on merit mod dispose of the same.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Section 317 of the Code of Criminal Procedure, Section 317 of the Code of Criminal Procedure, Section 397, Section 482, Section 317 of the Code of Criminal, Section 317 of the Code of Criminal Procedure, Section 4, Section 482, Section 397

PERSON: ORDERM.S. Nesargi, J.1, I. A. I., Sri J. Joseph, Sri Joseph, C. W. 8, Sri J. J. files, N. B. W., C. Ws, Sri Joseph, C. W. 3, Sri Joseph, C. W. 3, Sri J, Sri J. J., Sri J. J., Vakalath, Sri J. J., N. B. W., C. W. 2, C. W. 3, Sri Joseph, Sri Joseph, Lohra, Madh Pra, Sri Joseph, Sri Joseph, Sri Joseph

CARDINAL: 247, 915, 248, 25-6-1976, 247, 24-6-1978, one, 247, 6-7-78, 8 and, 12, 247, 1978.6, 248, two, 30-8-1976, 25-6-1978, 12-30, 2, 3, 7, 248, 1978.8, 2, two, 247, 248, 317, 1, 6, 6, 1, 2, 2, 1, 1, two, two, 8), two

DATE: 1978, 1976, 1978, 1976, 1978, 1978, 1978, 1976, 1975, 1978, 1978, 1973, 1968

ORG: C, C. No, the Metropolitan Magistrate, III Court, Magistrate, Magistrate, Court, Court, Court, Magistrate, Magistrates, Court, The State of Madhya Pradesh, Magistrate, Magistrate, Magistrate, Court, Court, Magistrate, Magistrate, Magistrate, the Karnataka Criminal Rules of Practice, Court, Court, Magistrate, Court, Magistrate, Section S17

GPE: Bangalore City, vakalathnama

PRODUCT: C.W. 2, Cri LJ 1808

LOC: separately.11