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2004 DIGILAW 1400 (AP)

G. Sridhar v. State Of A. P.

2004-11-19

C.Y.SOMAYAJULU

body2004
C. Y. SOMAYAJULU, J. ( 1 ) PETITIONERS who are taking trial for an offence under Section 376 of IPC engaged a counsel. The cause way in which the counsel for petitioners conducted the proceedings before the Sessions Court should not only be frowned at, but should also be deprecated, for the reasons to be mentioned below. ( 2 ) DURING the course of trial, the learned counsel for the petitioners in the trial Court filed Crl. M. P. No. 89 of 2004 for recalling p. W. 1 on the ground that some important questions have to be put to her. That petition was dismissed by the learned trial Judge. Aggrieved thereby, petitioners preferred a revision to this Court in Criminal Revision petition No. 1032 of 2004, which was dismissed by a learned Judge of this Court on 29-06-200. 4. The trial went on and the other witnesses for prosecution were examined. Thereafter since the counsel for the petitioners in the trial Court seems to have given up the brief during the course of trial, petitioners engaged another counsel and filed Crl. M. P. No. 424 of 2004 for recalling P. Ws. 5, 8 and 10 for cross- examination, on the ground that those witnesses were not cross-examined by their previous counsel. By the impugned order, the learned trial Judge dismissed the said petition on the ground that cross-examination of P. Ws. 5, 8 and 10 was recorded as nil, and since there are no justifiable grounds to recall those witnesses; hence this petition. ( 3 ) THE contention of the learned counsel for the petitioners is that since the earlier counsel for the petitioners in the trial Court was absent when P. Ws. 5, 8 and 10 were examined petitioners could not cross-examine those witnesses and that counsel for the petitioners in the trial Court, for reasons known to him only, refused to appear for the petitioners and wanted them to engage another counsel, and so they had to change another counsel, and filed the petition to recall P. Ws. 5, 8 and 10, and since petitioners would be put irreparable loss if those witnesses are not cross-examined, an opportunity may be given to the petitioners to cross-examine P. Ws. 5, 8 and 10 by recalling them. 5, 8 and 10, and since petitioners would be put irreparable loss if those witnesses are not cross-examined, an opportunity may be given to the petitioners to cross-examine P. Ws. 5, 8 and 10 by recalling them. ( 4 ) THE learned counsel who earlier appeared for the petitioners, and chose to remain absent when the case is posted for trial, and who seems to have given up the brief in the middle to the dismay of the petitioners, obviously had failed to keep in view not only Rule 12 of the Rules framed by the Bar Council under 49 (1 ) (c) of the advocates Act, 1961, which reads as follows:"an Advocate shall not ordinarily withdraw from engagements once accepted, with sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned. "but seems to have overlooked the observation of a Division Bench of this Court in P. Satyanarayana v. State om. P. reading"when an Advocate files appearance, he/she is expected to be present during the trial of the case and discharge his/ her functions in the best interest of justice. Otherwise, the Advocate s non-appearance amounts to professional misconduct. "and also seems to be oblivious of Rule 90 of the Criminal Rules of Practice and Circular orders, 1990, which says that Sessions work should usually be given preference over civil work and should never be unnecessarily interrupted. I am constrained to assume that the learned counsel for the petitioners in the trial Court was not aware of rule 9 (2) of the Rules dated 05-07-1972 made by this High Court under Section 34 (1) of the Advocates Act, 1961, which reads as follows:"in criminal cases, the appointment of an advocate, unless otherwise limited, shall be deemed to be in force until determined with the leave of the Court by writing signed by the party or the advocate, as the case may be and filed in Court, or until the party or the advocate dies, or until all the proceedings in the case are ended so far as regards the party". (Underlining mine) and that the above Rules framed by the Bar council and the High Court under the advocates Act, 1961, and the Criminal Rules of Practice, are meant to be followed in practice, but not in breach. In view of the above quoted Rules, it is clear that an advocate who appears for an accused in a sessions case owes a duty not only to his client, but also to the Court in cooperating with the smooth progress of the trial of the case. His either being absent from Court during the course of trial or withdrawing from the case abruptly, that too without seeking leave of the Court, is highly objectionable and is against all the cannons of professional discipline and conduct because in sessions cases trial schedule would be given in well advance. The parties and their counsel know which witness would be examined on what date, well in advance. So there can be no justifiable reason for the counsel for the accused seeking adjournment for cross-examining the witnesses for prosecution, scheduled to be examined on a particular day. Time and again this Court and the apex court held that witnesses should be examined when they attend Court and are not to be harassed by asking them to attend court again and again to give evidence, because unlike parties they have no personal interest in the case. They come to assist the Court in deciding the case. They will have their own profession or avocation. Why should they leave their profession or avocation and come to Court again and again to suit the convenience of the counsel who chose to be absent in Court for no justifiable reason when the date for their examination was fixed well in advance? court and witnesses cannot be put to inconvenience of the counsel for the accused, who, unethically chose to be absent from the Court, without any valid reason. A dutiful counsel would make alternate arrangement for the smooth conduct of the case even in his absence. ( 5 ) THE learned counsel for petitioners states that the earlier counsel for the petitioners in the trial Court did not appear in the Court because petitioners did not pay the fees demanded by him on that date. A dutiful counsel would make alternate arrangement for the smooth conduct of the case even in his absence. ( 5 ) THE learned counsel for petitioners states that the earlier counsel for the petitioners in the trial Court did not appear in the Court because petitioners did not pay the fees demanded by him on that date. I am constrained to observe that fact cannot be a valid reason or ground for a counsel for the accused being absent from Court in a part heard sessions case. Settling of fees by the advocate should be done before filing of the memo of appearance for the accused. After filing of the memo of appearance, and when the case became part heard, counsel for accused cannot either vanish or withdraw from the case on the ground that he was not paid the fees, that too without the leave of court in view of Rule 9 (2) of the Rules framed by this High Court under Sec. 34 (1) of the Advocates Act, 1961 extracted above. Had the earlier counsel for the petitioners in the trial Court not filed his memo of appearance, the Court would have appointed a state brief for the petitioners. ( 6 ) FROM a perusal of the evidence of p. W. 5 it is seen that the counsel for the petitioners reported that there is no cross-examination. So I see no grounds to recall p. W. 5. ( 7 ) IN respect of P. Ws. 8 and 10, the endorsement in their depositions is "counsel for the accused is not present. Hence cross-examination recorded to be nil. " P. W. 8 is a civil Assistant Surgeon and P. W. 10 is said to be a businessman. For no fault of theirs they would have to come back to Court for the purpose of cross-examination by the counsel for petitioners, just because their earlier counsel in the trial Court chose to remain absent from Court for no valid reason. More with a view to make the legal profession being made aware of the consequences that may ensue if the counsel for an accused in sessions case, that too in a part heard sessions case, is absent in court when the case is posted for trial or continuation of the trial, and with a view to ayoid prejudice being cause to the petitioners, P. Ws. 8 and 10 can be ordered to be recalled subject the petitioners paying heavy costs to the State, which they can recover from their earlier counsel, and their paying process and batta payable to them. ( 8 ) IN the result prayer of the petitioners to recall of P. W. 5 is dismissed. On condition of the petitioners depositing Rs. 15,000/- into the trial Court as costs to the State and on their depositing process and batta to p. Ws. 8 and 10, the petition for recall of p. Ws. 8 and 10 stands allowed. In default of deposit of Rs. 15,000/- and/or process and batta to P. Ws. 8 and 10 this petition stands dismissed in toto. Petitioners are entitled to recover the amounts deposited by them from their earlier counsel in the trial Court. ( 9 ) THE Criminal Petition is ordered accordingly.