Scope of power of attorney in Criminal Prosecution

Criminal Complaints through a Power of Attorney

The complaint in this case was a summary complaint under section 138 of Negotiable Instruments Act, 1888.

Whether a Power of Attorney holder can sign and file a complaint petition on behalf of the complainant ?

Supreme Court has answered the question in affirmative but subject to a few riders. The attorney acts as an agent of the complainant and therefore has to act in the name of principal:

“The power of attorney holder is the agent of the grantor. When the grantor authorizes the attorney holder to initiate legal proceedings and the attorney holder accordingly initiates such legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder and not by the attorney holder in his personal capacity. Therefore, where the payee is a proprietary concern, the complaint can be filed by the proprietor of the proprietary concern, describing himself as the sole proprietor of the payee, the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor, and the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor. However, we make it clear that the power of attorney holder cannot file a complaint in his own name as if he was the complainant. In other words, he can initiate criminal proceedings on behalf of the principal.”

Necessity of personal knowledge of attorney

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Witness in court through attorney

Is power of attorney holder, a competent witness to depose on behalf of the principal?

Attorney is a mere legal representative or an agent. Without anything more s/he can not have personal knowledge of the acts done by the principal, directly. Can such an attorney be competent witness?

Agent/ attorney under Civil Procedure code 1908, Order 3 Rule 1 & 2.

There was a divergence of opinion in different High Courts on the above question which was settled by Supreme Court as under:

The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2 CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
[Source: Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217.]