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2005 DIGILAW 915 (RAJ)

Deva Ram v. State of Rajasthan

2005-03-26

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant criminal misc. petition under Section 482, CrPC, the petitioner-complainant has challenged the orders dated 10.02.2005 and 02.03.2005 passed by Special Judge, SC/ST (Prevention of Atrocities) Act, Cases, Jodhpur (for short ‘the trial Court’ hereinafter) whereby the trial Court issued process and summoned the witnesses sought to be produced in defence by accused-Respondents No. 2 to 10 on an application accompanied by the list of the witnesses filed by the brief-holder of the Counsel for the accused-respondents and by order dated 02.03.2005, dispensed with the personal attendance of Accused-respondent No.3 Ganesha Ram and No.5 Panna Ram and rejected the application filed by the petitioner-complainant not to record the statements of the defence witnesses. 2. I have heard learned Counsel for the parties. Perused the orders impugned. 3. The facts and circumstances giving rise to the instant petition are that on an FIR No.338/2002 lodged by the present petitioner, the police investigated the matter and filed a challan against Accused-respondents No.2 to 10 for the offences under Sections 147, 341, 323/149, IPC and Section 3 (1)(x) of SC & ST (Prevention of Atrocities) Act, 1989. The accused-respondents were put to trial for the offences noticed above as State case (State of Rajasthan vs. Om Prakash & Ors.). The prosecution examined its witnesses and thereafter, the accused-respondents made their statements under Section 313, CrPC and sought to lead the evidence in defence and filed an application to produce the defence witnesses alongwith the list of witnesses. The only grievance of the petitioner-complainant is that the application accompanied by the list of the witnesses sought to be produced in defence was not signed by the Counsel engaged by them i.e., Mr. P.R. Choudnary, who is conducting the case on behalf of the accused-respondents but it was signed by Mr. Narendra Gehlot, an Advocate junior to Mr. P.R. Choudhary and, therefore, Mr. Narendra Gehlot Advocate is not competent to file such application and, therefore, the witnesses in defence ought not to have been summoned. P.R. Choudnary, who is conducting the case on behalf of the accused-respondents but it was signed by Mr. Narendra Gehlot, an Advocate junior to Mr. P.R. Choudhary and, therefore, Mr. Narendra Gehlot Advocate is not competent to file such application and, therefore, the witnesses in defence ought not to have been summoned. Learned Counsel for the petitioner contends that Rule 20 of the General Rules (Criminal), 1980 (for short ‘the Rules of 1980’) provides that every application for the issue of process for the attendance of witnesses, shall, if the party presenting the application is represented in the case by a legal practitioner, be accompanied by a certificate from such legal practitioner that he has satisfied himself that the evidence of each of the witnesses is material in the case. According to the learned Counsel for the petitioner Mr. Narendra Gehlot, Advocate though junior of Mr. P.R. Choudhary Counsel representing the accused-respondents was not authorised under the law to file such an application. Learned Counsel appearing for the accused-respondents submits that Rule 65 of the Rules of 1980 provides that legal practitioner when unable personally to attend to a case in which he is briefed, may hand over the brief to another legal practitioner without the latter filling a Vakalatnama and, therefore, Mr. Narendra Gehlot being a junior advocate to him appeared as a brief holder and filed the application accompanied by the list of the witnesses sought to be summoned in defence. He has relied on a decision of this Court in Shri Manak alias Manak Chand vs. The State of Rajasthan, 1990 (3) Crimes 246 , wherein after considering the provisions of Rule 65 of Rules, 1980, this Court held that a legal practitioner is empowered under Rule 65 to hand over the brief to another legal practitioner, if he is unable to appear personally in a case in which he is briefed. Under Section 317, CrPC, an application may be presented for dispensing with the personal attendance of the accused. In that case Shri Chavand Dan was the Counsel representing the accused and Shri Surendra Goel a legal practitioner field an application seeking dispensing with the personal appearance of the accused is a brief holder of Shri Chavand Dan. The Court held that brief holder legitimately could move an application for dispensing with the personal attendance of the accused-persons. In that case Shri Chavand Dan was the Counsel representing the accused and Shri Surendra Goel a legal practitioner field an application seeking dispensing with the personal appearance of the accused is a brief holder of Shri Chavand Dan. The Court held that brief holder legitimately could move an application for dispensing with the personal attendance of the accused-persons. In the instant case, the defence witnesses have already been summoned and their statements have been recorded by the trial Court. The certificate of the Counsel as envisaged under Section 20 of the Act of 1980 not accompanied with an application seeking to summon the defence witnesses cannot be a ground not to read the evidence of witnesses produced in defence. It is settled law that a brief holder of the Counsel engaged by the accused is empowered to appear and plead the case of the party and, therefore, it cannot be said that the Counsel engaged by accused respondent is not empowered to handover the brief to other Counsel and, therefore, brief holder is the person authorised to act and plead on behalf of accused-respondents. 4. In this view of the matter, I do not find any illegality or perversity in the order impugned passed by the trial Court. 5. Consequently, this criminal misc. petition has no force and it is hereby dismissed.