State vs Angrez Singh etc.

M.R. Sharma, J.—The learned Sessions Judge, Jullundur, was seized of Sessions Case No. 201 of 1976 (State v. Angrez Singh and another) in which the accused persons were being tried for an offence u/s 302, Indian Penal Code. One Shri Ram Pal Singh Gill, Advocate had originally filed his power of attorney on their behalf. On February 1, 1977 another power of attorney signed by three advocates, namely Sarvshri Sarabjit Singh, B.S. Bassi and B.S. Randhawa, was filed. On this power of attorney Shri Ram Pal Singh Gill had given a note that be had no objection against the appearance of Shri H.S. Sandhu, Senior Advocate, to defend the accused persons. It looks that Sarvshri Sarabjit Singh, B.S. Bassi and B.S. Randhawa, Advocates, had been engaged to assist Shri H.S. Sandhu. Mr. Sandhu was also present in Court on that date. The case was adjourned to February, 18, 1977, on which date the learned Sessions Judge was on leave and the case was taken up on March 1, 1977, in the presence of Mr. H.S. Sandhu the learned Senior Advocate. It was then adjourned to March 11, 1977. On that day by an ostensibly well-reasoned order, the learned Sessions Judge held that the power of attorney filed by Shri Sarabjit Singh was defective in as much as the names of Sarvshri B.S. Bassi and B.S. Randhawa were added afterwards and since they were not properly appointed advocates to instruct Shri Sandhu the later could not cross-examine the prosecution witnesses unless and until he filed his own power of attorney.

When this matter came to my notice at Jullundur at the time of the yearly inspection of the District Courts, I initiated suo motu action and served a notice upon the local public Prosecutor to show cause why this order should not be set aside. The learned Public Prosecutor appeared before me on April 22, 1977, and stated that he was not in a position to argue this matter at such a short notice. Since 1 was unlikely to prolong my stay at Jullundur, this case was ordered to be put up before me at Chandigarh.

Shri Narinder Singh, Advocate appeared on behalf of the learned Advocate General Punjab, and rendered me able assistance for which I am greateful to him.

Two points arise in this case. Firstly whether the learned Sessions Judge could hold that the power of attorney filed by Shri Sarabjit Singh, Advocate, was defective at this stage or not and, secondly whether the Senior Advocate while cross-examining prosecution witness acts on behalf of the accused within the meaning of the Explanation appearing under rule 1(a) in Chapter I of Part VI of the Bar Council of India Rules.

Regarding the first point, I would like to observe that Shri Sandhu has been appearing on behalf of the accused persons on at last two earlier dates when the accused persons were also present in Court. Neither the accused persons nor any Advocates, namely, Sarvshri Sarabjit Singh, B.S. Bassi and B.S. Randhawa, raised any dispute about the validity of the power of attorney at any stage. Even if the power of attorney is regarded as a contract between an Advocate and an accused person, under which the former lends his service to the later, only the affected parties could raise any dispute about the validity of the contract. The Courts do not readily assume that a document has been materially altered because the burden of proving that a document has been altered in material particulars lies on the party who asserts this fact and for determining this issue, the conduct of the parties has to be taken into consideration. In any event when the power of attorney had been filed in a criminal case, the Court should not have allowed such an objection to be raised by the Public Prosecutor. Even otherwise it could have been easily settled by ascertaining the wishes of the accused person and the Advocates, who were present before the Court. I am of the considered opinion that the power of attorney filed by Shri Sarabjit Singh, especially in a criminal case, cannot be regarded as defective. Shri Ram Pal Singh Gill, Advocate, had expressly agreed to the appearance of Shri H.S. Sandhu, the learned Senior Advocate, on behalf of the accused persons in terms of first proviso to rule 2 appearing in Chapter 6-B of Volume V of the Rules and Orders of the Punjab High Court. As already noticed his mote appeared on the power of attorney filed by Shri Sarabjit Singh, Advocate, and his two colleagues. From the conduct of Sh. Sandhu it Could be inferred that at he was appearing on instructions from Shri Sarabjit Singh and that was all what the rules require.

Coming now to the second point, section 16(3) of the Advocates Act, 1961 lays down that Senior Advocates shall in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interests of the legal profession, prescribe. Section 49(1) (g) of the Advocates Act, 1961, entitles the Bar Council of India to frame Rules imposing restrictions in the matter of practice to which Senior Advocates shall be subject. In exercise of the aforementioned power, the Bar Council of India has framed the Bar Council of India Rules. The rules appearing in Part VI of these Rules lay down that a Senior Advocate shall not appear without an Advocate on Record in the Supreme Court or without an Advocate in Part II of the State Roll in any Court or Tribunal. Rule 1(a) appearing in Chapter. I of Part VI of the Bar Council of India Rules lays down that a Senior Advocate shall not file a power of attorney or act in any Court, or Tribunal, or before any person or other authority mentioned in section 30 of the Advocates Act, 1961. The explanation appearing under this rule reads as under:�

Explanation : ''To act'' means to file an appearance or any pleading or application in any Court, or Tribunal, or before any person or other authority mentioned in section 30 of the Act, or to do any act other them pleading required or authorised by law to be done by a party in such Court, or Tribunal or before any person or other authority mentioned in the said section either in person or by his recognised agent or by an Advocate or an attorney on this behalf.

When the aforementioned explanation is interpreted in a reasonable manner, it means that a Senior advocate appearing on behalf of an accused person in a criminal case cannot sign application on his behalf. Neither he could undertake to appear on behalf (sic) person whose personal presence is exempted. But I fail to see how he could be debarred from cross-exanimation the prosecution Witnesses after receiving instructions from a junior counsel A similar point came up for consideration before the Delhi High Court in Saraswati Vs. Tulsi Ram Seth and Others, , in which it was held, that a Senior Advocate while cross-examining witnesses in a civil case did not act on behalf of a party within the meaning of the aforementioned Explanation. I am in respectful agreement with the view impounded in that case and do not wish to traverse the grounds covered by that judgment. However, I wish to add that Article 22 of the Constitution of India lays down that an accused person shall have a right to be defended by a counsel of his choice. The cross-examination of prosecution witnesses constitutes an important element of defence in a criminal trial. The words "right to be defended" appearing in this Article have, therefore, to be liberally construed other wise this important fundamental right would become illusory. The Explanation appearing u/s 30 of the Advocates Act, 1961, has to be read in harmony with Article 22 of the Constitution. This can only be done if it is held that cross-examination of a prosecution witness does not come within the meaning of the word "act" appearing in the Explanation quoted above. I would accordingly hold that the learned Sessions Judge was not properly advised in disallowing Shri H.S. Sandhu Senior Advocate, to cross-examine the prosecution witnesses.

The next question which remains to be considered is whether the prosecution witnesses should be resummoned for being cross-examined by Shri Sandhu or not. One point of view is that since Shri Sandhu was present in Court and the cross-examination was conducted by another counsel under his direct supervision no prejudice has been caused to the accused person and as such the case for the cross-examination of the prosecution witnesses should not be reopened. The other point of View is that the art of cross-examination is a special art and an accused persecution has the right to have the prosecution witnesses cross-examined by an experienced counsel of his choice. Even if the two considerations hang ill equal balance, I would like to opt for the second. The question whether an accused person has been prejudiced or not becomes relevant after the conclusion of the trial. During its continuance, due weight has to be attached even to the directory provisions of the law of procedure. In H.N. Rishbud and Inder Singh Vs. The State of Delhi, it was laid down that when a breach of the mandatory provision of section 5-A of the Prevention of Corruption Act is brought to the notice of the Court at an early stage of the trial, the Court will have to consider the nature and the extent of the violation and pass appropriate orders for such reinvestigation as may be called for. The grievance of the accused persons in the instant case stands on a much higher footing Right of an accused person to cross-examine prosecution witness flows out of the principle of natural justice an and invasion of this right renders the proceedings illegal in contradiction with merely irregular proceedings.

For the reasons mentioned above and in exercise of powers u/s 482, Criminal Procedure Code read with Article 227 of the Constitution, I quash the order dated March 11, 1977 passed by the learned Sessions Judge, Jullundur and direct that he should recall the prosecution witnesses for cross-examination by Shri H.S. Sandhu, the learned Senior Advocate. The case shall then be disposed of by them in accordance with law.