P L D 1952 Azad J (PLP)

ABDUL MAJID, C. J.‑The petitioner Munshi Habibullah Khan brought a complaint under section 500 A. P. C., against one Muhammad Hussain, Sub‑Inspector Police in the Court of District Magistrate. Muzaffarabad. The District Magistrate after examining the complainant summoned the accused to answer the charge. The accused, did not appear before the District Magistrate and the case was transferred to the Revenue Assistant, who exercised Ist Class Magisterial Powers. The 1st Class Magistrate instead of proceeding with the case himself, sent it to the Superintendent of Police for departmental enquiry and for investigation under section 202 Criminal Procedure Code. The Superintendent of Police reported that there was no prima‑facie case against the accused. The result was that the complaint was dismissed under section 203, Criminal Procedure Code. Against that order Munshi Habibullah Khan moved the High Court. The order dismissing the complaint was set aside and the case was made over to the Sub‑Judge, Magistrate for retrial. While the case was pending in the Court of Sub‑Judge, Magistrate, the District Magistrate directed the Prosecuting Deputy Superintendent Police to defend the accused and to appear for him in the Court of Sub‑Judge, Magistrate. Munshi Habibullah Khan took objection to the appearance of Prosecuting Deputy Superin tendent Police in the Court of Sub‑Judge, Magistrate for defending the accused. The Prosecuting Deputy Superintendent Police brought to the notice of Sub‑Judge, Magistrate that as the case was against the Police .Officer in the official capacity, he was entitled to plead and defend him under the orders of the District Magistrate. The Sub‑Judge; Magistrate accepted the argument of Prosecuting Deputy Superintendent Police and allowed him to defend the accused. Against this order Munshi Habibullah Khan has filed the present revision petition. Section 4 (i) (r) Criminal Procedure Code defines the word "Pleader" used with the reference to any proceeding in a Criminal Court as meaning a Pleader or a Mukhtar authorised under any law for the time being in force to practise in such Court and includes an Advocate, a Vakil and an attorney of a High Court so authorised and any other person appointed with the permission of the Court to act in such proceedings. The learned Government Advocate has argued that as the Prosecuting Deputy Superintendent Police had been permitted by the Sub‑Judge, Magistrate to defend the accused, he could act as a Pleader. The argument would have carried weight if the Sub‑Judge, Magistrate had passed the order sought to be revised after fully understanding the meaning assigned to the word Pleader in the Criminal Procedure Code and an application had been made by the accused that he wanted to appoint a particular person as a Pleader to defend him. What appears to me is, that the Sub‑Judge, Magistrate simply allowed the Pro secuting Deputy Superintendent Police to defend the accused because the District Magistrate had directed him to do so. The District Magistrate had no authority whatsoever to authorise any person to act as a Pleader for the accused before the Sub‑Judge, Magistrate. It was duty of the Sub‑Judge, Magistrate to permit a particular person whom the accused desired to defend him to act as a Pleader after due consideration of the in terest of the party engaging him. This was not done, in the pre sent case. The Prosecuting Deputy Superintendent Police con sequently cannot be taken to have been appointed as a Pleader by. the Sub‑Judge, Magistrate for defending the accused within the meaning of section 4 (i) (r) of the Criminal Procedure Code and he had no right to defend the accused. It is no doubt open to the accused under the afore‑mentioned section to appoint any person to appear on his behalf and plead and do other acts on his behalf but there must be clearly on record something to show that the person who represents the accused has been duly appointed by him and that the Court has given requisite permission for his appearance in place of the accused. I, therefore, accept the revision petition and order that the Prosecuting Deputy Superintendent Police shall not appear and act for the accused unless the latter applies to the Sub‑Judge, Magistrate for permission to enable the Prosecuting Deputy Superintendent Police to defend him and the Sub‑Judge, Magistrate grants it. A. H. Petition accepted.