Judgment : P.N. Prakash, J. 1. This is a case of murder for gain. It is alleged by the prosecution that on 17.08.2012, the petitioner/accused had committed the murder of his brother's mother-in-law by throttling her neck and thereafter, he decamped with her jewellery. The trial Court, by judgment dated 30.04.2014 in S.C.No.14/2013 convicted the accused as follows: Section of law Conviction and sentence U/s 302 IPC ‘Imprisonment for life’ and to pay a fine of Rs.5,000/-, i/d to undergo two years S.I. U/s 392 IPC Five years R.I. and to pay a fine of Rs.5,000/-, i/d to undergo two years S.I. The sentences shall run concurrently 2. Following the judgment of the Hon'ble Supreme Court in Atul Tripathi vs. State of Uttar Pradesh [2014(8) Scale 663], we ordered notice to the State and the prosecution has filed strong objections for suspending the sentence and releasing the petitioner on bail. 3. Heard the learned counsel for the petitioner/accused and the learned Additional Public Prosecutor for the State. 4. The learned counsel for the petitioner contended that there are no eye witnesses to the case and the entire prosecution case is based on circumstantial evidence. The learned counsel assailed the evidence of Manonmani [P.W.4] the daughter of the deceased, who in her evidence stated that, when she called her mother at 11.30 a.m. on 17.08.2012, she was told by her mother that the accused is in the house and is watching Television. The learned counsel submitted that her evidence is an improvement and that she had failed to state several facts to the police when she was examined. The husband of the deceased, Manoharan [P.W.2], was not in the house on the date of incident. He received information from his neighbour, Ragunath Mohan [P.W.10] that, his wife has fallen in the kitchen and so he instructed his brother Palanichamy [P.W.1] to go to his house and find out the correct position. When Palanichamy [P.W.1] went there, he found his sister-in-law dead and he lodged a complaint, based on which, initially a case u/s 174 Cr.P.C. was registered by the police. Only during autopsy Dr.Jeysingh [P.W.23] found out that the deceased had died out of throttling of neck. Thereafter, the investigation took a different turn. When Palanichamy [P.W.1] went there, he found his sister-in-law dead and he lodged a complaint, based on which, initially a case u/s 174 Cr.P.C. was registered by the police. Only during autopsy Dr.Jeysingh [P.W.23] found out that the deceased had died out of throttling of neck. Thereafter, the investigation took a different turn. In that circumstances, just because Manonmani [P.W.4] had not stated certain facts when she was examined by the police initially, it cannot be said that her evidence will become suspect. 5. Apart from the evidence of Manonmani [P.W.4], the trial Court has also relied upon the evidence of Sivakumar [P.W.6] and Sanjeev [P.W.7] who had seen the accused in the house of the deceased in and around the time of occurrence. The learned counsel took us through the evidence of these witnesses and submitted that they are not reliable, as Sanjeev [P.W.7] is related to the deceased. We carefully perused the evidence of these witnesses and found that the defence was not able to make any substantial dent in their evidence. 6. The learned Additional Public Prosecutor submitted that there has been recovery of the jewellery that was worn by the deceased from Muthoot Finance, which was pledged after the offence. This fact has been proved by Raja [P.W.12] the Manager of Muthoot Finance. 7. The learned counsel for the petitioner submitted that the jewellery was pledged by Baskaran [P.W.9] and not by him. We find that the trial Court has relied upon the evidence of Baskaran [P.W.9] who has stated that, it was the accused who gave him the jewellery and had requested him to pledge the same. There is no animus attributed to Baskaran [P.W.9] who is a close friend of the accused. 8. At this juncture, the learned counsel for the accused submitted that the accused was not given a fair trial in this case. In support of this submission, he drew the attention of this Court to the order passed by a learned single Judge of this Court on 01.10.2013 in Crl.O.P.No.7142/2013 in an earlier proceedings in this very case. 8. At this juncture, the learned counsel for the accused submitted that the accused was not given a fair trial in this case. In support of this submission, he drew the attention of this Court to the order passed by a learned single Judge of this Court on 01.10.2013 in Crl.O.P.No.7142/2013 in an earlier proceedings in this very case. It is stated in the order that there was a boycott of Courts on 11.03.2013 on account of Nationwide agitation and on that day, the trial Court examined P.Ws.1 to 13, marked Exhibits 1 to 10 and Material Objects 1 to 5., Aggrieved by this, the accused filed Crl.O.P.No.57142/2013 before this Court for transferring the case from the Court of Principal Sessions Judge, Erode to some other Court on the ground that the Judge is biased and that he ought not to have examined the witnesses in the absence of the counsel. The order dated 01.10.2013 in Crl.O.P.No.7142/2013 passed by the learned single Judge has been circulated to all the Subordinate Courts and the same has been published in, S.Yuvaraj vs. State [2013(4) MLJ(Crl.)314]. 9. On a careful reading of the order passed by the learned single Judge it appears that, the trial Court framed the charges against the accused and posted the case to 11.03.2013 for examination of witnesses. The learned single Judge, after adverting to Article 21, 22, 39-A of the Constitution of India, Sections 303, 304 and 309 of the Code of Criminal Procedure, had found fault with the trial Judge for examining witnesses, when there was boycott of Courts. The learned single Judge eschewed the entire evidence that was adduced by the prosecution and transferred the case to the first Additional Sessions Judge, Erode with a direction "To record the evidence of witnesses afresh in the presence of defence counsel." It appears from the order of the learned single Judge that the Principal District and Sessions Judge, Erode had examined the witnesses only in chief and had posted the case to another date for the cross examination of the witnesses by the defence. 10. Before us, the learned counsel for the accused filed a list of dates and events and we are extracting a few dates from there. 10. Before us, the learned counsel for the accused filed a list of dates and events and we are extracting a few dates from there. 06.02.2013 Case committed to Erode PDJ from JM No.1 Gobi 20.02.2013 First hearing in PDJ Erode 25.02.2013 Filing of vakalat by defence counsel 28.02.2013 Framing of charges 11.03.2013 Trial-Examination of PWs 1 to 13 and Exhibits 1 to 10 marked in the absence of defence counsel 19.03.2013 Posted for trial continuation (Transfer Criminal OP filed in High Court) From the above, it can be seen that even before framing of charge, the defence counsel had entered appearance on 25.02.2013. It is a normal practice in the State that after the charge is framed, a date convenient to either side is fixed and on that date, the police is directed to produce the prosecution witnesses. It appears that, on 11.03.2013 the prosecution had produced 13 witnesses, but on account of boycott of Courts, the defence counsel was not present. We are also aware of the practice in the State that during boycott of Courts by Advocates, the counsels appearing for the State like Prosecutors, Government Pleaders and Government Advocates will attend the Courts and not join the boycott call. The Courts also hear them sometimes and even grant reliefs to the accused by enlarging them on bail etc., in the absence of the defence counsel. Courts walk such an extra mile to ensure that the accused in jail do not suffer on account of boycott by defence lawyers. Here, we have to take note of the judgment of the Constitution Bench of the Hon'ble Supreme Court in Ex-Capt. Harish Uppal vs. Union of India [ 2003 (2) SCC 45 ], wherein the Supreme Court has clearly held that, lawyers have no right to boycott the Courts and that Boycott is an illegal act. "35. In conclusion, it is held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike. ...... ...... ...... ...... It is held that courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all courts to go on with matters on their boards even in the absence of lawyers. In other words, courts must not be privy to strikes or calls for boycotts. ...... ...... ...... ...... It is held that courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all courts to go on with matters on their boards even in the absence of lawyers. In other words, courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a vakalat of a client, abstains from attending court due to a strike call, he shall be personally liable to pay costs which shall be in addition to damages which he might have to pay his client for loss suffered by him." [emphasis supplied] 11. We are afraid that Judges and Government Counsels cannot allow judicial work to come to a standstill during boycott of Court by advocates, for that would tantamount to disrespecting the dictum of the highest Court in the country. 12. In State of Uttar Pradesh vs. Shambhu Nath Singh [2001 AIR SCW 1335] it is stated as follows: "9. We make it abundantly clear that if a witness is present in Court he must be examined on that day. The Court must know that most of the witnesses could attend the Court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of Bhatta (allowance) which a witnesses may be paid by the Court is generally a poor solace for the financial loss incurred by him. It is a sad plight in the trial Courts that witnesses who are called through summons or other processes stand at the doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by presiding officers of the trial Courts and it can be reformed by every one provided the presiding officer concerned has a commitment to duty." [emphasis supplied] In the same judgment, the Supreme Court has relied upon Rajdeo Sharma (II) vs. State of Bihar [ 1999 (7) SCC 604 ], wherein, it has said as follows: "16. ..... We request every High Court to remind the trial Judges through a circular, of the need to comply with Section 309 of the Code in letter and spirit. ..... We request every High Court to remind the trial Judges through a circular, of the need to comply with Section 309 of the Code in letter and spirit. We also request the High Court concerned to take note of the conduct of any particular trial Judge who violates the above legislative mandate and to adopt such administrative action against the delinquent judicial officer as the law permits." [emphasis supplied] 13. In N.G.Dastane v. Shrikant S.Shivde [ 2001 (3) Supreme 640 ], the Supreme Court has said as follows: "20. ....When witnesses are present in Court for examination the advocate concerned has a duty to see that their examination is conducted. We remind that witnesses who come to the Court, on being called by the Court, do so as they have no other option, and such witnesses are also responsible citizens who have other work to attend for eking out livelihood. They cannot be treated as less respectables to be told to come again and again just to suit the convenience of the advocate concerned. If the advocate has any unavoidable inconvenience it is his duty to make other arrangement for examining the witnesses who is present in Court. Seeking adjournments for postponing the examination of witnesses who are present in Court even without making other arrangements for examining such witnesses is a dereliction of advocate's duty to the Court as that would cause much harassment and hardship to the witnesses. Such dereliction if repeated would amount to misconduct of the advocate concerned. Legal profession must be purified from such abuses of the Court procedures. Tactics of filibuster, if adopted by an advocate, is also professional misconduct." 14. The Supreme Court has held that both the accused and the victim have the right of speedy trial. This has been emphasised by the Supreme Court in Rattiram v. State of Madhya Pradesh [ AIR 2012 SC 1485 ]. "47. While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused. The right of a victim has been given recognition in Mangal Singh and Anr. v. Kishan Singh and Ors. [ AIR 2009 SC 1535 ], wherein it has been observe thus:- "Any inordinate delay in conclusion of a criminal trial undoubtedly has highly deleterious effect on the society generally and particularly on the two sides of the case. The right of a victim has been given recognition in Mangal Singh and Anr. v. Kishan Singh and Ors. [ AIR 2009 SC 1535 ], wherein it has been observe thus:- "Any inordinate delay in conclusion of a criminal trial undoubtedly has highly deleterious effect on the society generally and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence." 15. The Parliament in its wisdom had taken note of all these directions, which is evident from the amendment that was brought into Section 309 Cr.P.C. by the Code of Criminal Procedure (Amendment Act), 2008 [Act 5 of 2009] with effect from 01.11.2010, which reads as under: "309.Power to postpone or adjourn proceedings.- (1) ...... (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: [Provided also that- (a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; (b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment; (c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness, and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.]" 16. The victim of a crime who was a non-entity earlier, has been given a place of honour in the amended Code of Criminal Procedure. The victim of a crime who was a non-entity earlier, has been given a place of honour in the amended Code of Criminal Procedure. The term ''victim" has been included in Section 2, by Act 5 of 2009, with effect from 31.12.2009 and it reads as follows: "2(wa) - "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir." 17. What emerges from the rulings and the provision of law stated above is, the trial Courts cannot be found fault with for recording the examination-in-chief of the witnesses who are in attendance, in the absence of the defence counsel. We cannot lay down an inexorable rule that, the trial Court should not even record the examination-in-chief of a witness in attendance when there is a Court boycott, for that would tantamount to ignoring the mandates of the Constitution Bench of the Supreme Court in Harish Uppal's case (cited supra), and may even amount to contempt of the orders of the Supreme Court. It will be wrong to say that the trial Court will permit inadmissible evidence against the accused in the absence of the defence, for such a presumption cannot be drawn against judicial officers in the teeth of the illustration (e) of Section 114 of the Evidence Act, which says : "The Court may presume-- (e) That judicial and official acts have been regularly performed." We trust and have implicit faith on the wisdom of our Judicial Officers who are manning the trial Courts in this State. 18. Even the learned single Judge has taken note of the tactics that may be adopted by the litigants for protracting the case and that is why, in para 36, he has said as follows: "36. ..... But, there may be a situation where the absence of defence counsel is wanton, intentional, wilful and there was no sincere efforts to engage a defence counsel, the absence of the defence lawyers is unjustified and the absence of the defence lawyer is a ploy to protract the trial." Fundamental Rights guaranteed under Part III of the Constitution are intended to be enjoyed and not abused. 19. 19. In the result, we hold that the learned single Judge's order in S.Yuvaraj vs. State [2013 (4) MLJ (Crl.) 314] cannot be misconstrued as laying down the law that, trial Courts cannot record the examination-in-chief of witnesses who are in attendance, in the absence of defence counsel, even when there is boycott of Courts. We leave these aspects to the best discretion of the trial Court Judges, who, we are confident, will bear in mind the rights of the accused and the victim and would use their discretion judiciously. We also cannot lose sight of the fact that Advocates of both sexes, become victims of crime and when they come to the Court for giving evidence for the prosecution, can the Judge send them away on the score that the defence counsel is not present? The answer is an emphatic 'No'. What applies to lawyers should apply to others too. If a Judge records evidence in chief even without ascertaining whether the accused had engaged a counsel or not, then the issue takes a different form and the trial Court can be faulted if it is found that the accused had not even engaged a counsel. 20. Reverting to the facts of this case, the learned counsel for the accused submitted that, after the case was transferred to the first Additional District and Sessions Judge, final arguments were heard on 21.04.2014 and the case was posted to 30.04.2014 for delivering judgment. On that day it appears that the accused had filed a petition under Section 311 Cr.P.C for recalling P.W.23 and P.W.24 for further examination, together with a petition u/s 317 Cr.P.C to condone the absence of the accused before the Court. The trial Court dismissed the petition and pronounced the judgment convicting and sentencing the accused. We consciously do not want to comment anything on this aspect of the case, because we are not dealing with the main appeal. The trial Court dismissed the petition and pronounced the judgment convicting and sentencing the accused. We consciously do not want to comment anything on this aspect of the case, because we are not dealing with the main appeal. Suffice to say that this cannot be a ground for suspending the sentence in the light of the parameters laid down by the Supreme Court in Atul Tripathi vs. State of Uttar Pradesh [2014(8) Scale 663] wherein, it has been stated in para 16(d) thus: "The court shall judiciously consider all the relevant factors whether specified in the objections or not, like gravity of offence, nature of the crime, age, criminal antecedents of the convict, impact on public confidence in court, etc. before passing an order for release." 21. Taking into consideration the gravity of the offence and existence of prima facie materials, we are of the opinion that this is not a fit case for suspending the sentence and granting bail to the accused. We clarify here that whatever finding we have given on facts are not conclusive and they are only for the purpose of determining whether the accused would be entitled to the relief of suspension of sentence and bail. The petition is dismissed. Note: As this order deals with certain aspects concerning trial of criminal cases by the Subordinate Courts, the Registry is directed to place this order before My Lord, the Hon'ble Chief Justice for orders to circulate this order to all the Judicial Officers working in the State of Tamil Nadu and Union Territory of Puducherry.