There Cannot Be Unilateral Decision From Court While Scheduling Trial, Convenience Of Lawyer Should Also Be Considered: Kerala High Court

Justice P.V. Kunhikrishnan observed that when lawyers make genuine submissions for rescheduling the trial to another date, the Court should show magnanimity to accept it and schedule the trial as requested by them, after considering the convenience of the court also.

“There cannot be a unilateral decision from the Court alone while scheduling trial. Accused has got a right to choose his lawyer for conducting the trial and hence the convenience of the lawyer also should be taken care of by the Court. But, the submission of the lawyer should be genuine. Whether the submission of a lawyer for getting a date for trial is genuine or not is to be decided by the Court at the stage of scheduling the trial. If the submission of the lawyer of the accused or prosecution is genuine, the Court should be magnanimous to accept it and schedule the trial as requested by them after considering the convenience of the Court also.”

An application was filed by the accused persons for rescheduling their trial and it was dismissed by the Additional Sessions Court (Adhoc-II), Palakkad. This was challenged before the High Court.

The Court noted that the Additional Sessions has dismissed the application for rescheduling the trial based on a notification issued by the High Court on 07.08.2023 for disposal of murder cases immediately. The Court stated that the intent of the notification was to only ensure that old murder cases which were pending were disposed of immediately. The Court further stated that it does not mean that  while scheduling a trial, the convenience of the lawyers need not be looked into by the trial court.

The Court noted that it was fundamental for the trial court to consider the convenience of lawyers while scheduling a date for conducting the trial. It noted that the submissions of the counsel have to be considered in a pragmatic manner if they seek another date for conducting the trial.

“When a lawyer coming before the court saying that he is already engaged in some other sessions case and he is ready to conduct the trial on a particular date, the Court should hear that submission in a pragmatic manner,” the Court observed.

The Court also referred to Rule 77A(2) of the Criminal Rules of Practice, Kerala, 1982 which states that after framing of charges, the Court shall hear both prosecution and accused to ascertain and fix consecutive dates for recording evidence. The Court stated that even the above rule shows that the prosecution and accused also have a role in fixing the schedule of the trial.

The Court further noted that the accused has a right to be defended by a lawyer of his choice and hence the Court should consider the convenience of the lawyer while fixing a date for the trial.

On the above observations, the Court set aside the order of the Additional Sessions Court (Adhoc-II), Palakkad and directed for reconsideration of the application for rescheduling the trial.

Counsel for the petitioners: Advocate V A Johnson (Varikkappallil)

Counsel for the respondent: Public Prosecutor Sreeja V

Citation: 2023 LiveLaw (Ker) 638

Case title: Vishnu v State of Kerala

Case number: CRL.MC NO. 9209 OF 2023

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