Can a practising pleader sit as Magistrate in certain courts?

Question: Can a practising pleader sit as Magistrate in certain courts?

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Answer

The Public Prosecutor or the Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any court in which that case is under inquiry, trial, or appeal. Section 480 in the Code of Criminal Procedure, 1973 deals with the provision regarding practicing pleader not to sit as Magistrate in certain Courts. It states that no pleader who practices in the Court of any Magistrate shall sit as a Magistrate in that Court or in any Court within the local jurisdiction of that Court.

The section means that a pleader cannot both be a Magistrate and act as a pleader in the Court at the same time. There is no objection to a pleader practising in the Court being appointed as a Magistrate in such Court provided; he gives up his practice while he is on the bench.

However, judicial propriety commands that one who has practiced as a pleader in that court should not act or plead before that court.

Section 480 holds that a pleader as defined in section 2(q) of the Code cannot both be a Magistrate and act as a pleader in the Court at the same time.

Three other relevant provisions from other statute books are Article 124(7) of the Constitution which states that

“No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India, Article 220 of the Constitution which states that No person who, after the commencement of this Constitution, has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts”.

Explanation- In this article, the expression High Court does not include a High Court for a State specified in Part B of the First Schedule as it existed before the commencement of the Constitution.

And section 32 of the Advocates Act, 1961, states that

“Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case”.

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