Change Of Counsel Not Ground To Recall Witnesses U/S 311 CrPC: Madhya Pradesh High Court

Justice G.S. Ahluwalia was dealing with a criminal revision filed by the Applicant under Section 397/401 CrPC, who was aggrieved by the order of the trial court, whereby his application under Section 311 CrPC to recall two witnesses was rejected.

The Applicant submitted that he was facing trial for offences punishable under Sections 302/34, 304-B IPC, along with Section 39 and 40 Arms Act, 1959. He further submitted that there were two key witnesses, that could not be examined properly by his Counsel, during the trial.

He argued that it is a well-established principle of law that no party should suffer due to the incompetence of the lawyer. Therefore, he contended that the court below should've granted him another opportunity to further cross-examine the witnesses concerned, preventing him to suffer an irreparable loss. However, he conceded before the Court that he did not report the conduct of his Counsel, who represented him in his trial, to the Bar Council.

The Court examined the submissions of the Applicant in the context of the jurisprudence laid out by the Apex Court in State of Haryana v. Ram Mehar & Ors. and in State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., and opined-

Incompetency of a Lawyer engaged by the applicant cannot be presumed by this Court. The applicant had engaged a Lawyer of his choice. If the applicant is of the view that his Lawyer had deliberately not put certain questions thereby committing professional misconduct, then he has a remedy to approach the Bar Council because in the light of the judgment passed by the Supreme Court in the case of R. Muthukrishnan Vs. Registrar General, High Court of Judicature at Madras reported in (2019) 16 SCC 407, only the Bar Council is competent to take action against an Advocate of his/her professional misconduct.

The Court further observed that since the Applicant had not approached the Bar Council, therefore, even otherwise, it could not concur with him that by not putting certain questions to the witnesses, his Counsel had committed any professional misconduct.

It thus, noted that since the change of counsel cannot be a ground for recall of the witnesses, no jurisdictional error was committed by the trial court by rejecting the application filed under Section 311 CrPC.

The revision was accordingly dismissed.

Case Title: Ichhashankar Vs. State of MP

Citation: 2022 LiveLaw (MP) 51