Approach Bar Council If Lawyer Not Serious Towards Profession: MP HC Rejects Plea To Recall Witness For Cross-Examination Over Counsel's Absence

Hearing the application under Section 482 CrPC, moved by the Applicant, Justice G.S. Ahluwalia observed-

If the applicant has engaged a lawyer who is not serious towards his profession, then the applicant has a remedy to approach the Bar Council and if the counsel for the applicant was working as per the instructions of the applicant, then the applicant cannot run away from his liability of not cross-examining the prosecution witness Ranjana Chauhan on 28.12.2021, 29.12.2021 and 11.01.2022.

Facts of the case were that the Applicant/accused was facing trial for offences punishable under Section 8 POCSO Act r/w Section 363,366, 34 IPC. His case was listed for cross-examination of one of the witnesses but his lawyer was not present before the court on the said date as the lawyers were abstaining from work on that. He had, therefore, prayed the court to grant him another opportunity to cross-examine the witness. However, even on the next date, his lawyer did not cross-examine the witness and hence, his right to cross-examine her was closed.

Aggrieved by the closing of rights, the Applicant moved an application under Section 311 CrPC to recall the witness for cross-examination but the same was rejected by the lower court. The Applicant then moved the Court to challenge the impugned order.

The Applicant submitted before the Court that his lawyer did not appear before the lower court to examine the witness on two occasions because on the first occasion, the lawyers were abstaining from work and on the second occasion, he simply refused to cross-examine the witness. The Applicant argued that the witness was the Investigating Officer and therefore it was imperative for him to cross-examine her. Hence, he prayed the Court to grant him one last opportunity to cross-examine her.

Per contra, the State opposed the application by bringing attention of the Court to the proceeding of the case before the lower court, pointing out occasions wherein the Applicant was trying to delay the trial. It was submitted that the Counsel for the Applicant before the lower court did not cross-examine the I.O. on three occasions. The State further argued that the trial was more than five years old and speedy trial was not only the fundamental right of an accused, but also a fundamental right of the victim, who cannot be harassed at the sweet will of the Applicant.

Examining the submissions of the parties and the documents on record, the Court opined that considering the observations of the Apex Court in Ex-Capt. Harish Uppal v. UOI & Anr. advocates would be answerable to their clients for not appearing before the courts in the name of strike-

Thus, it is clear that the Advocates would be answerable for the consequences suffered by the clients if the non-appearance was solely on the ground of a strike call. On 28.12.2021 the prosecution witness was not cross-examined because the lawyers were abstaining from work. The Bar cannot justify its strike merely by saying that they are not on strike, but they are abstaining from work. Strike and abstaining from work is one and the same thing.

The Court further noted that despite the 'illegal strike', the lower court had granted two more chances to the Applicant to cross-examine the witness but they were not availed by his lawyer.

Therefore, the Court refused to interfere with the impugned order passed by the trial court. However, the Court granted liberty to the Applicant to move against his counsel if he had acted against his instructions-

However, liberty is granted to the applicant that in case, if his counsel had acted contrary to his instructions and did not cross- examine the witness in spite of his clear instructions, then he shall have a remedy of filing a civil suit for claiming compensation. He shall also have a remedy to approach the Bar Council against his local counsel for abstaining from work in spite of the law laid down by the Supreme Court in the case of Ex-Capt. Harish Uppal (supra).

With the aforesaid observations the application was dismissed by the Court.