Kerala High Court
Gokul Raj vs State Of Kerala on 6 March, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 6TH DAY OF MARCH 2024 / 16TH PHALGUNA, 1945
OP(CRL.) NO. 108 OF 2024
CRIME NO.5/2020 OF ATTINGAL EXCISE CIRCLE OFFICE,
THIRUVANANTHAPURAM
S.C.NO.82 OF 2021 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -
IV, THIRUVANANTHAPURAM
PETITIONER/ACCUSED NO.3:
GOKUL RAJ
AGED 26 YEARS
S/O. RAJAN, CHITHIRA HOUSE, NEAR GIRLS' HIGH SCHOOL,
ATTINGAL, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM
DISTRICT, PIN - 695101
BY ADV NIREESH MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM, KOCHI, PIN - 682031
BY SR. PUBLIC PROSECUTOR SRI. K DENNY DEVASSY
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 15.2.2024, THE
COURT ON 06.03.2024 DELIVERED THE FOLLOWING:
O.P(Crl.).No.108/2024 2
'C.R'
A. BADHARUDEEN, J.
================================
O.P(Crl.) No.108 of 2024
================================
Dated this the 6th day of March, 2024
JUDGMENT
This Original Petition (Crl.) is one filed under Article 227
of the Constitution of India and the petitioner is the 3 rd accused in
S.C.No.82/2021 on the files of the Narcotic Drugs and Psychotropic
Substances Act Special Court (Additional Sessions Court-IV),
Thiruvananthapuram.
2. Heard the learned counsel for the petitioner and
the learned Public Prosecutor appearing for the State.
3. In this petition the petitioner seeks the following
reliefs:
"i) Direct the Additional District and Sessions Court-IV,
Thiruvananthapuram to dispose of S.C.No.82/2021 within a period
6 months taking into account of the illness of the Counsel for the
petitioner as evident from Exhibit P4 Medical Certificate.
ii) Grant such other and further reliefs as this Hon'ble
Court may deem fit and proper in the facts and circumstances of
the case.
iii) dispense with the filing of the translation of
vernacular documents."
4. The learned counsel for the petitioner submitted
that the petitioner has been arrayed as 3rd accused in
S.C.No.82/2021, on alleging commission of offences punishable
under Section 20(b)(ii)(C) and 29 of the Narcotic Drugs and
Psychotropic Substances Act (`NDPS Act' for short hereinafter).
According to the learned counsel for the petitioner, though the
earlier bail applications filed by the petitioner were dismissed as per
Ext.P1 and P2 orders, subsequently the petitioner as well as the 4 th
accused were released on bail as per Ext.P3 order of this Court. It
is submitted that, at the time when Ext.P2 order was passed, this
Court directed the trial court to dispose of the case within a period
of 3 months from the date of receipt of a copy of this order.
Thereafter, in obedience to the directions of this Court the trial
court proceeded with the trial and the petitioner was defended by
Advocate Celine Wilfred of Trivandrum Bar. Though the lawyer
representing the petitioner sought adjournment for a period of 6
months to conclude the trial pointing out her illness, the trial court
not was inclined to grant the same.
5. The report from the learned Special Judge was
called for and it was reported by the learned Special Judge that in
accordance with the direction issued by this Court trial started in
this case and prosecution examined PW1 to PW18 and Exts.P1 to
P94 and MO1 to MO21 were marked. Now the case stands posted
for examination of CW24, the one and only witness remaining on
the side of the prosecution. It was also reported that by the time
Advocate Celine Wilfred expired.
6. So the crux of the matter is adjournment sought
for on the ground of illness of the lawyer, who subsequently died.
In this connection, I am inclined to address the question as to what
extent an Advocate has right to seek adjournment of trial, according
to his/her convenience?
(a) Procedure under Code of Civil Procedure:
7. Order XVII pertains to adjournment of trial. Rule
1 states that if sufficient cause is shown, the Court may adjourn the
hearing of a suit from time to time and such reasons shall be
recorded in writing. However, the proviso to Rule 1 states that, in
any case, no more than three adjournments shall be granted to a
party during the hearing of the suit. Rule 2 of Order XVII states that
costs may be imposed on the party seeking adjournment. Rule 2(b)
further states that no adjournment shall be granted at the request of
the party except where the circumstances are beyond the control of
the party.
8. Advocates appearing for the parties usually seek
adjournment for trial and hearing for multiple reasons. Order XVII
of the C.P.C. governs adjournments in civil cases and Section 309
of the Cr.P.C. deals with powers of the criminal court to postpone
or adjourn proceedings. Rule 2(c) of Order XVII provides that the
pleader of a party is engaged in another Court shall not be a ground
for adjournment. Furthermore, Rule 2(d) of Order XVII provides
that where the illness of a pleader or his inability to conduct the
case for any reason is put forwarded as a ground for adjournment
the Court shall not grant such adjournment, unless it is satisfied that
the party applying for adjournment could not have engaged another
pleader in time.
9. As regards the increased adjournments in trials,
the Hon'ble Supreme Court in the decision in Shiv Cotex v. Tirgun
Auto Plast (P) Ltd. and Others reported in [(2011) 9 SCC 678]
held as under:
"14. Second, and equally important, the High Court upset the
concurrent judgment and decree of the two courts on misplaced
sympathy and non-existent justification. The High Court observed
that the stakes in the suit being very high, the plaintiff should not be
non-suited on the basis of no evidence. But who is to be blamed for
this lapse? It is the plaintiff alone. As a matter of fact, the trial court
had given more than sufficient opportunity to the plaintiff to produce
evidence in support of its case. As noticed above, after the issues were
framed on 19-7-2006, on three occasions, the trial court fixed the
matter for the plaintiff's evidence but on none of these dates any
evidence was let in by it. What should the court do in such
circumstances? Is the court obliged to give adjournment after
adjournment merely because the stakes are high in the dispute?
Should the court be a silent spectator and leave control of the case to
a party to the case who has decided not to take the case forward?
15. It is sad, but true, that the litigants seek-and the courts grant-
adjournments at the drop of the hat. In the cases where the Judges
are little proactive and refuse to accede to the requests of
unnecessary adjournments, the litigants deploy all sorts of methods in
protracting the litigation. It is not surprising that civil disputes drag
on and on. The misplaced sympathy and indulgence by the appellate
and revisional courts compound the malady further. The case in hand
is a case of such misplaced sympathy. It is high time that courts
become sensitive to delays in justice delivery system and realise that
adjournments do dent the efficacy of the judicial process and if this
menace is not controlled adequately, the litigant public may lose faith
in the system sooner than later. The courts, particularly trial courts,
must ensure that on every date of hearing, effective progress takes
place in the suit.
16. No litigant has a right to abuse the procedure provided in CPC.
Adjournments have grown like cancer corroding the entire body of
justice delivery system. It is true that cap on adjournments to a party
during the hearing of the suit provided in the proviso to Order 17
Rule 1 CPC is not mandatory and in a suitable case, on justifiable
cause, the court may grant more than three adjournments to a party
for its evidence but ordinarily the cap provided in the proviso to
Order 17 Rule 1 CPC should be maintained. When we say "justifiable
cause" what we mean to say is, a cause which is not only "sufficient
cause" as contemplated in sub-rule (1) of Rule 1 of Order 17 CPC but
a cause which makes the request for adjournment by a party during
the hearing of the suit beyond three adjournments unavoidable and
sort of a compelling necessity like sudden illness of the litigant or the
witness or the lawyer; death in the family of any one of them; natural
calamity like floods, earthquake, etc. in the area where any of these
persons reside; an accident involving the litigant or the witness or the
lawyer on way to the court and such like cause. The list is only
illustrative and not exhaustive.
17. However, the absence of the lawyer or his non-availability
because of professional work in other court or elsewhere or on the
ground of strike call or the change of a lawyer or the continuous
illness of the lawyer (the party whom he represents must then make
alternative arrangement well in advance) or similar grounds will not
justify more than three adjournments to a party during the hearing of
the suit."
10. The COVID-19 pandemic and the restrictions
thereof gave pleaders and parties legitimate reasons to seek
adjournments, since there were multiple government orders
restricting symptomatic people from leaving their houses and
entering public life. That apart, Courts were hesitant to permit
pleaders in poor health from appearing before them. However, due
to effective control of the pandemic, COVID symptoms ceased to
be grounds for adjournment.
11. In the decision in Rafiq & anr. v. Munshilal &
anr., reported in [1981 AIR 1400], the Apex Court held as under:
"3. The disturbing feature of the case is that under our present
adversary legal system where the parties generally appear through
their advocates, the obligation of the parties is to select his advocate,
brief him, pay the fees demanded by him and then trust the learned
advocate to do the rest of the things. The party may be a villager or
may belong to a rural area and may have no knowledge of the
Court's procedure. After engaging a lawyer, the party may remain
supremely confident that the lawyer will look after his interest. At the
time of the hearing of the appeal, the personal appearance of the
party is not only not required but hardly useful. Therefore, the party
having done everything in his power to effectively participate in the
proceedings can rest assured that he has neither to go to the High
Court to inquire as to what is happening in the High Court with
regard to his appeal nor is he to act as a watchdog of the advocate
that the latter appears in the matter when it is listed. It is no part of
his job. Mr. A. K. Sanghi stated that a practice has grown up in the
High Court of Allahabad amongst the lawyers that they remain
absent when they do not like a particular Bench. May be we do not
know, he is better informed in this matter. Ignorance in this behalf is
our bliss. Even if we do not put our seal of imprimatur on the alleged
practice by dismissing this matter which may discourage such a
tendency, would it not bring justice delivery system into disrepute.
What is the fault of the party who having done everything in his
power and expected of him would suffer because of the default of his
advocate. If we reject this appeal, as Mr. A. K. Sanghi invited us to
do, the only one who would suffer would not be the lawyer who did
not appear but the party whose interest he represented. The problem
that agitates us is whether it is proper that the party should suffer for
the inaction, deliberate omission, or misdemeanour of his agent. The
answer obviously is in the negative. May be that the learned
advocate absented himself deliberately or intentionally. We have no
material for ascertaining that aspect of the matter. We say nothing
more on that aspect of the matter. However, we cannot be a party to
an innocent party suffering injustice merely because his chosen
advocate defaulted. Therefore, we allow this appeal, set aside the
order of the High Court both dismissing the appeal and refusing to
recall that order. We direct that the appeal be restored to its original
number in the High Court and be disposed of according to law. If
there is a stay of dispossession it will continue till the disposal of the
matter by the High Court. There remains the question as to who shall
pay the costs of the respondent here. As we feel that the party is not
responsible because he has done whatever was possible and was in
his power to do, the costs amounting to Rs.200/- should be recovered
from the advocate who absented himself. The right to execute that
order is reserved with the party represented by Mr. A. K. Sanghi."
(b) Procedure under Criminal Procedure Code:
12. Section 309 confers the power to postpone or
adjourn proceedings. It states that every inquiry or trial shall
continue from day-to-day until all the witnesses in attendance have
been examined, unless the Court records reasons for adjourning it
beyond the following day. The proviso to the section states that no
adjournment shall be granted at the request of a party, except where
the circumstances are beyond the control of that party. No
adjournment shall be granted on the ground that the pleader of a
party is engaged in another Court. The explanation to S.309 states
that adjournment or postponement may be granted in appropriate
cases on terms which may include payment of costs by the
prosecution or the accused.
13. The Hon'ble Supreme Court has held in the
decision in Chaudhary v. State (Delhi Administration) reported in
[1984 AIR 618] as under:
"2. We think it is an entirely wholesome practice for the trial to
go on from day-to-day. It is most expedient that the trial before the
Court of a Session should proceed and be dealt with continuously
from its inception to its finish. Not only will it result in expedition, it
will also result in the elimination of manoeuvre and mischief. It will
be in the interest of both the prosecution and the defence that the
trial proceeds from day-to-day. It is necessary to realise that
Sessions cases must not be tried piecemeal. Before commencing a
trial, a Sessions Judge must satisfy himself that all necessary
evidence is available. If it is not, he may postpone the case, but only
on the strongest possible ground and for the shortest possible period.
Once the trial commences, he should, except for a very pressing
reason which makes an adjournment inevitable, proceed de die in
them until the trial is concluded."
14. In the decision in N.G.Dastane v. Shrikant
S.Shivde & another reported in [(2001) 6 SCC 135], the Apex
Court dealt with definition of `misconduct' under Section 35(1) of
the Advocates Act, 1961 and speaking for the 3 Bench his Lordship
Honourable Justice K.T.Thomas, who penned the judgment,
discussed the same in paragraphs 15 to 23 as extracted hereunder:
"15. Chapter V of the Advocates Act, 1961 (for short "the Act")
contains provisions for dealing with the conduct of advocates. The
word "misconduct" is not defined in the Act. Section 35 of the Act
indicates that the misconduct referred to therein is of a much wider
import. This can be noticed from the wording employed in sub-
section (1) of that section. It is extracted herein:
"35. (1) Where on receipt of a complaint or otherwise a State
Bar Council has reason to believe that any advocate on its
roll has been guilty of professional or other misconduct, it
shall refer the case for disposal to its Disciplinary
Committee."
16. The collocation of the words "guilty of professional or other
misconduct" has been used for the purpose of conferring power on
the Disciplinary Committee of the State Bar Council. It is for
equipping the Bar Council with binoculars as well as a whip to be on
the qui vive for tracing out delinquent advocates who transgress the
norms or standards expected of them in the discharge of their
professional duties. The central function of the legal profession is to
help promotion of administration of justice. Any misdemeanour or
misdeed or misbehaviour can become an act of delinquency if it
infringes such norms or standards and it can be regarded as
misconduct.
17. In Black's Law Dictionary "misconduct" is defined as:
"A transgression of some established and definite rule of action,
a forbidden act, a dereliction from duty, unlawful behaviour,
wilful in character, improper or wrong behaviour; its synonyms
are misdemeanour, misdeed, misbehaviour, delinquency,
impropriety, mismanagement, offence, but not negligence or
carelessness."
18. The expression "professional misconduct" was attempted to
be defined by Darling, J., in A Solicitor, ex p, Law Society, in re in
the following terms:
"If it is shown that an advocate in the pursuit of his
profession has done something with regard to it which would be
reasonably regarded as disgraceful or dishonourable by his
professional brethren of good repute and competency, then it is
open to say that he is guilty of professional misconduct."
19. In R.D. Saxena v. Balram Prasad Sharma this Court has
quoted the above definition rendered by Darling, J., which was
subsequently approved by the Privy Council in George Frier
Grahame v. Attorney-General and then observed thus: (SCC p. 275,
para 19)
"19. Misconduct envisaged in Section 35 of the
Advocates Act is not defined. The section uses the expression
'misconduct, professional or otherwise'. The word 'misconduct'
is a relative term. It has to be considered with reference to the
subject-matter and the context wherein such term occurs. It
literally means wrong conduct or improper conduct."
20. An advocate abusing the process of court is guilty of
misconduct. When witnesses are present in the court for
examination the advocate concerned has a duty to see that their
examination is conducted. We remind that witnesses who come to
the court, on being called by the court, do so as they have no other
option, and such witnesses are also responsible citizens who have
other work to attend to for eking out a livelihood. They cannot be
treated as less respectable to be told to come again and again just
to suit the convenience of the advocate concerned. If the advocate
has any unavoidable inconvenience it is his duty to make other
arrangements for examining the witnesses who are present in the
court. Seeking adjournments for postponing the examination of
witnesses who are present in court even without making other
arrangements for examining such witnesses is a dereliction of an
advocate's duty to the court as that would cause much harassment
and hardship to the witnesses. Such dereliction if repeated would
amount to misconduct of the advocate concerned. Legal profession
must be purified from such abuses of the court procedures. Tactics
of filibuster, if adopted by an advocate, is also a professional
misconduct.
21. In State of U.P. v. Shambhu Nath Singh this Court has
deprecated the practice of courts adjourning cases without
examination of witnesses when such witnesses are in attendance.
We reminded the courts thus:
"We make it abundantly clear that if a witness is present in
court he must be examined on that day. The court must know
that most of the witnesses could attend the court only at heavy
cost to them, after keeping aside their own avocation. Certainly
they incur suffering and loss of income. The meagre amount of
bhatta (allowance) which a witness may be paid by the court is
generally a poor solace for the financial loss incurred by him.
It is a sad plight in the trial courts that witnesses who are
called through summons or other processes stand at the
doorstep from morning till evening only to be told at the end of
the day that the case is adjourned to another day. This
primitive practice must be reformed by presiding officers of the
trial courts and it can be reformed by everyone provided the
presiding officer concerned has a commitment to duty. No
sadistic pleasure in seeing how other persons summoned by
him as witnesses are stranded on account of the dimension of
his judicial powers can be a persuading factor for granting
such adjournments lavishly, that too in a casual manner."
22. When the Bar Council in its wider scope of supervision over
the conduct of advocates in their professional duties comes across
any instance of such misconduct it is the duty of the Bar Council
concerned to refer the matter to its Disciplinary Committee. The
expression "reason to believe" is employed in Section 35 of the Act
only for the limited purpose of using it as a filter for excluding
frivolous complaints against advocates. If the complaint is genuine
and if the complaint is not lodged with the sole purpose of
harassing an advocate or if it is not actuated by mala fides, the Bar
Council a has a statutory duty to forward the complaint to the
Disciplinary Committee.
23. In Bar Council of Maharashtra v. M.V. Dabholkar a four-
Judge Bench of this Court had held that the requirement of "reason
to believe" cannot be converted into a formalised procedural
roadblock, it being essentially a barrier against frivolous
enquiries."
15. The Hon'ble Supreme Court in R.D.Saxena v.
Balaram Prasad Sharma reported in [AIR 2000 SC 2912], which
defining the term 'misconduct' held in paragraph Nos.19 to 23, as
under:
"19. Misconduct envisaged in Section 35 of the Advocates Act is
not defined. The section uses the expression "misconduct,
professional or otherwise". The word "misconduct" is a relative
term. It has to be considered with reference to the subject-matter
and the context wherein such term occurs. It literally means wrong
conduct or improper conduct.
20. Corpus Juris Secundum, contains the following passage at page
740 (vol. 7) :
"Professional misconduct may consist in betraying the confidence
of a client, in attempting by any means to practise a fraud or
impose on or deceive the Court or the adverse party or his counsel,
and in fact in any conduct which tends to bring reproach on the
legal profession or to alienate the favourable opinion which the
public should entertain concerning it."
21. The expression "professional misconduct" was attempted to be
defined by Darling, J., in In Re A Solicitor ex parte the Law Society,
(1912) 1 KB 302, in the following terms:
"If it is shown that an Advocate in the pursuit of his profession has
done something with regard to it which would be reasonably
regarded as disgraceful or dishonourable by his professional
brethern of good repute and competency, then it is open to say that
he is guilty of professional misconduct."
22. In this context it is to be mentioned that the aforesaid definition
secured approval by the Privy Council in George Frier Grahame v.
Attorney General, Fiji, AIR 1936 PC 224. We are also inclined to
take that wide canvass for understanding the import of the
expression "misconduct" in the context in which it is referred to in
Section 35 of the Advocates Act.
23. We, therefore, hold that the refusal to return the files to the
client when he demanded the same amounted to misconduct under
Section 35 of the Act. Hence, the appellant in the present case is
liable to punishment for such misconduct."
16. In the decision in Doongar Singh & Ors. v. State
of Rajasthan reported in [2017 KHC 6819 : 2018 (1) KHC SN 10 :
2018(1) KLD 170 : 2017 (13) SCALE 752 : 2018(1) KLT 629 :
2018 (13) SCC 741] also, the Apex Court addressed the
examination of witnesses within the ambit of Section 309 of Cr.P.C
and held that the trial courts conducting criminal trial to be mindful
of not giving adjournment after commencement of the evidence in
serious criminal cases and eyewitnesses must be examined by the
prosecution as soon as possible. In the said decision, the Apex
Court also directed the High Courts to issue appropriate directions
to the trial courts for compliance. In paragraph 13 it was concluded
as under:
"13. To conclude:
(I) The Trial Courts must carry out the mandate of S.309
of the Cr.P.C as reiterated in judgments of this Court, inter alia, in
[2001 KHC 377 : 2001 (4) SCC 667 : 2001 (2) KLT 159 : 2001 SCC
(Cri) 798 : AIR 2001 SC 1403 : 2001 All LJ 835 : 2001 CriLJ
1740], State of U.P v. Shambhu Nath Singh and Others; [2002
KHC 1356 : 2002 (7) SCC 334], Mohd. Khalid v. State of W.B;
[2015 KHC 4054 : 2015(3) SCC 220 : 2015 (1) KHC SN 17 : 2015
(1) KLD 399 : 2015 (1) KLT SN 114 : AIR 2015 SC 1206 : 2015
CriLJ 1442], Vinod Kumar v. State of Punjab
(1) KLT SN 114 : AIR 2015 SC 1206 : 2015 CriLJ 1442.
(ii) The eye-witnesses must be examined by the prosecution
as soon as possible.
(ii) Statements of eye -witnesses should invariably be
recorded under S.164 of the Cr.P.C as per procedure prescribed
thereunder."
17. In the decision in Lt. Col. S.J.Chaudhary v. State
(Delhi Administration) reported in [AIR 1984 SC 618], the Apex
Court held as under:
(A) Criminal P.C.(2 of 1974), S.231-Sessions trial - Must
proceed de die in diem until concluded.
The trial before the Court of a Session must proceed and be
dealt with continuously from its inception to its finish. It will be in
the interest of both prosecution and the defence that the trial
proceeds from day to day. Sessions cases must not be tried
piecemeal. Once the trial commences, he must except for a very
pressing reason which makes an adjustment inevitable, proceed de
die in diem until the trial is concluded."
18. In the decision rendered by a Division Bench of
the Karnataka High Court, after considering the decision in
R.D.Saxena's case (supra), in paragraph Nos.6 and 7, observed as
under:
"6. As could be seen from the observations made in the two
decisions extracted above, a party to a litigation has an absolute
right to appoint an advocate of his choice, to terminate his
services, and to appoint a new advocate. The party has the
freedom to change his advocate any time and for whatever reason.
However, fairness demands that the party should inform his
advocate already on record, though this is not a condition
precedent to appoint a new advocate.
7. There is nothing known as irrevocable vakalatnama. The right
of a party to withdraw vakalatnama or authorization given to an
advocate is absolute. Hence, a party may discharge his advocate
any time, with or without cause by withdrawing his vakalatnama
or authorization. On discharging the advocate, the party has the
right to have the case file returned to him from the advocate, and
any refusal by the advocate to return the file amounts to
misconduct under S.35 of the Advocates Act, 1961. In any
proceeding, including civil and criminal, a party has an absolute
right to appoint a new Advocate. Under no circumstance, a party
can be denied of his right to appoint a new advocate of his choice.
Therefore, it follows that any rule or law imposing restriction on
the said right can't be construed as mandatory. Accordingly,
Courts, Tribunals or other authorities shall not ask for 'no
objection' of the advocate already on record, to accept the
vakalatnama filed by a new advocate."
A plain reading of the above mentioned provisions of law in the
C.P.C. and the Cr.P.C. and the case law on the point of
adjournments, if the pleader/advocate does not prepare for the case
and seeks an adjournment, it can lead to costs being imposed on
his/her party and to be realised from the pleader/advocate.
19. Order XVII Rule 1(e) of C.P.C. provides that
where a witness is present in court but a party or his pleader is not
present or the party or his pleader, though present in court is not
ready to examine or cross-examine the witness, the Court may, if it
thinks fit record the statement of witness and pass such orders as it
thinks fit dispensing with the examination-in-chief or cross-
examination of witness, as the case may be, by the party or his
pleader not present or not ready as aforesaid. Adjournments in
criminal cases also shall be in compliance with Section 309 of the
Cr.P.C. Thus, on no stretch of imagination convenience of a party
or his lawyer can interdict the process of trial or hearing in civil or
criminal cases, subject to limited exceptions already stated.
Further, the courts' convenience supersedes the convenience of
party/ies or his/their lawyers, in the matter of trial and hearing of
cases. Therefore, the Court has a legal duty to start trial in
accordance with the convenience of the court subject to the
conditions provided in Order XVII of the C.P.C and Section 309 of
the Cr.P.C. and to hear and dispose of cases, and such power cannot
be interdicted merely on the ground of inconvenience of the
party/ies or his/their lawyers and if such a proposition is accepted,
the day-to-day trial envisaged under Section 309 of the Cr.P.C and
the mandate of Order XVII of the C.P.C would become redundant
and law does not permit the same. However, Courts can consider
adjournment or postponement in accordance with law, as herein
above extracted in appropriate cases and on payment of cost
considering the facts of the case.
20. Before parting, I am forced to refer the present
scenario and the menace of adjournments which would stand in the
way of disposing cases in a time bound manner, before the trial
courts, appellate courts and the High Court, tantamounts to denial
of justice to the real aggrieved persons. Since I am dealing with
Second Appeals, Execution Second Appeals, Miscellaneous Second
Appeals and Regular Second Appeals, I had a glimpse on the total
pendency of matters during the month of February, 2024. Registry
placed statements showing the total pendency which is 12,536. The
year wise pendency is extracted hereunder:
21. In so far as the Second Appeals are concerned, in
admitted matters, detailed hearing is absolutely necessary to address
the substantial question/s of law formulated. Therefore, the Judge
also should have to study the case thoroughly to hear and dispose of
the matters in a time bound manner. At present, even though the
Judge studies the cases, by halting on sleepless nights and expresses
willingness to dispose of the cases, after hearing both sides with a
view to reduce the pendency, some Advocates are not co-operating
with the Court and they are seeking adjournment on various
grounds and `illness' is their last weapon. I have been granting
such adjournments in plenty and the proceedings of this Bench
would speak for the same. No doubt, some adjourment requests on
the ground of illness are genuine, but majority are not. In such
situation, it is very difficult to identify the genuine requests on the
ground of illness. It is shocking to note that nobody is cared of the
position of the Judge, who is prepared and ready to hear a matter
posted for hearing with endorsement `hearing finally', 'last chance'
and 'for disposal'. In such matters also, some advocates seek
adjournment again and invariably the ground for adjournment is
'illness'. Then, the Judge would be put into dilemma and dejection,
because the Judge feels that, his hard work giving a go-by to sound
sleep being spoiled.
22. Even though lawyers are duty bound to co-operate
with the Court in the matter of disposal and that is what is intended
by co-operation between the Bar and the Bench in letter and spirit,
time bound disposal of cases could not be materialized because of
unnecessary adjournments. This is the biggest menace and the
same is the reason for huge pendency of matters before all courts.
In this connection, I am inclined to have an arithmetical glimpse of
the present scenario, in as much as second appeals are concerned.
The position is not much different in other categories of cases
which I dealt earlier.
23. As I have already pointed out, in order to dispose
of Second Appeals, study of matters by the Judge prior to detailed
hearing is necessary. So, the number of cases a Judge can dispose
of may be 4 or 5, per day. The total number of working days in an
year as far as the High Court is concerned is 210 days. If a Judge
decides to dispose of 4 Second Appeals per day without fail, then
also the total number of days required to dispose of these cases,
(excluding the expected filing) is 3134 days, ie., 14.92 years
(calculated year on the rate of 210 working days). When, 4 newly
filed cases added daily 30 years period also not sufficient to dispose
of the second appeals pending before this Court.
24. If a Judge is able to dispose of 5 cases per day,
then also the number of days required to clear the pendency is 2507,
which is equivalent to 11.93 years. When, 5 newly filed cases
added daily 24 years period also not sufficient to dispose of the
second appeals pending before this Court. If this is the scenario,
how could this pendency be reduced without co-operation of the
lawyers, by avoiding unnecessary adjournments.
25. As I have already mentioned, since some
Advocates are regularly getting matters adjourned on the ground of
illness and this Court noticed by naked eye that those submissions
were wrong and made for the purpose of getting adjournments, (the
details of the said notice are not being disclosed for the time being)
when adjournment will be sought on the ground of illness, that too,
after repeated adjournments when the case if posted for hearing and
disposal 'finally' or a 'last chance', this Bench is not in a position to
identify genuine requests of lawyers, who actually suffering illness
or infirmity. It is worth to mention that a section of lawyers have
been co-operating with this Court in the matter of timely disposal of
cases and their attitude is appreciable.
26. Coming back, in this matter, the learned counsel
appeared for the petitioner is no more, taking note of the interest of
fair trial and to provide an opportunity for the accused to defend
him properly, a reasonable time in this case can be granted in the
interest of justice. Therefore, I am inclined to allow this Original
Petition as under:
In the result, the Original Petition(Crl.) stands allowed
directing the learned Special Judge to provide two weeks' time from
the date of receipt of a copy of this judgment for the petitioner to
appoint a lawyer of his choice, so as to facilitate him to study the
case, and to continue the trial thereafter on a convenient day and
complete the trial within a period of six weeks thereafter.
Ordered accordingly.
Sd/-
(A.BADHARUDEEN, JUDGE)
rtr/
APPENDIX OF OP(CRL.) 108/2024
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE PHOTO COPY OF THE ORDER PASSED BY
THIS HON'BLE COURT IN B.A NO.7864/2021
DATED 28.10.2021
EXHIBIT P2 TRUE PHOTO COPY OF THE ORDER PASSED BY
THIS HON'BLE COURT IN B.A NO.9752/2022
DATED 08.02.2023
EXHIBIT P3 TRUE PHOTO COPY OF THE COMMON ORDER
PASSED BY THIS HON'BLE COURT IN B.A
NOS.6339/2022 AND 4079/2023 DATED
31.05.2023
EXHIBIT P4 TRUE PHOTO COPY OF THE MEDICAL
CERTIFICATE ISSUED FROM JUBILEE MEMORIAL
HOSPITAL, THIRUVANANTHAPURAM DATED
02.02.2024
RESPONDENT'S EXHIBITS NIL
//TRUE COPY//
PA TO JUDGE
