Janata Kanwar vs State of Chhattisgarh

R.S. Garg, J.—By this petition the applicant seeks to challenge correctness, validity and propriety of the order dated 29-6-2001 passed by the learned Additional Sessions Judge, Korba.

Learned counsel for the applicant submits that in an offence triable by the Court of Sessions the applicant had engaged a senior counsel but on 29-5-2001 the senior counsel was not available, therefore, his junior colleague Shri Chandel made a request to the Court for adjourning the case. The Trial Court in the hot haste rejected the said prayer and required Shri Chandel to cross-examine the witnesses. Thereafter the applicant through his counsel made an application u/s 311, Cr.PC for recall of the witnesses but by the order impugned the Court below rejected the application simply on the ground that the cross-examination was conducted by Shri Chandel. Shri H.V. Sharma further submits that the manner in which the application has been rejected is uncalled for and further that in a matter which is triable by the Court of Sessions the fate of the accused who engages a senior counsel to represent him before the Court cannot be left in the hands of the junior colleague of the said lawyer. He submits that if the Court was of the opinion that the witnesses will have to suffer unnecessarily then the said witnesses could be compensated in terms of cost.

Shri Ashish Shukla, learned counsel for the State, submits that as the Court below had jurisdiction to grant or reject the application filed u/s 311, Cr.PC, there is no scope for any interference by this Court in these proceedings.

I have heard the parties.

On 29-5-2001 Shri Chandel junior colleague of the counsel had made an application that as senior counsel had gone out, the case be adjourned. The learned Trial Court observed that Ratiyani Bai, Sukhlal and Roop Singh were present in the Court and as the accused was represented by Shri Chandel it was not in the fitness of the things to adjourn the case and that it would cause unnecessarily harassment to the witnesses. After rejecting the application the Court required Shri Chandel to cross-examine the witnesses. From the said order-sheet it appears that the Court below virtually forced Shri Chandel to conduct the cross-examination. In the opinion of this Court when an accused engages a counsel then he reposes his confidence in the said counsel and requires the said counsel to act, appear and plead on his behalf. Such an accused virtually authorises the counsel to do every act on his behalf. He gives his life, liberty and everything in the hands of such counsel. When a senior counsel is not available and it is not said that the senior counsel was not acting with consciousness or was not living to the standard of advocacy or was acting contrary to the provisions contained under the Advocates Act or his conduct was unbecoming of an Advocate, ordinarily a prayer made by the accused through a junior colleague for adjournment of the case should not be rejected. From the records it does not appear that on the date when these three witnesses were examined, there were any lapses on the part of the senior counsel or the Court on earlier occasions had adjourned the case or the counsel was exhibiting such conduct which disentitled him from an adjournment. When a Court forces a junior colleague to cross-examine a witness it virtually affects the legal right of the accused and makes him vulnerable to the prosecution attacks. The seriousness of the offence can be understood by the simple fact that it is triable by the Court of Sessions.

The Court below, in the opinion of this Court was again unjustified in rejecting the applicant''s application submitted u/s 311, Cr.PC. Present was not a case where the senior counsel had cross-examined the witnesses or wanted to fill up certain lacunas, therefore, said counsel was requiring the witnesses to appear in the Court for further cross- examination. Present is a case where the witnesses could not be effectively cross-examined by the junior counsel and the senior counsel thought that if the witnesses are not effectively cross-examined the defence of the accused would be adversely affected which may lead to his conviction and it would adversely affect his right of liberty. The observations of the Court below that if the witnesses are recalled then they would be required to face harassment and unnecessarily expenses would have to be incurred, are not the reasons germane for rejecting the application. If the Court below was of the opinion that the expenses will have to be incurred again then the Court below could direct the accused to bear the costs which could compensate the witnesses. The Court below was certainly unjustified in rejecting the application only on the ground that the witnesses were examined in presence of and cross-examined by Shri Chandel. The order passed by the Court below suffers with material irregularity and tantamount to non-exercise of the jurisdiction. If such an order is allowed to stand it would cause serious prejudice to the defence of the accused.

The order deserves to and is accordingly set aside. The application of the applicant filed u/s 311, Cr.PC is allowed. On production of a copy of this order before the Trial Court, the said Court shall require the three witnesses to appear before the Court for their further cross-examination. The applicant would be required to bear the cost/expenses and would also be obliged to pay Rs. 300/- to each of the said witnesses as compensatory cost.

If the Trial Court requires the applicant to deposit the expenses and the above referred cost in advance the applicant shall deposit the said amount with the Court in accordance with the directions of the said Court.

The petition is allowed.

Criminal Revision allowed.