The Madhya Pradesh High Court recently comprising of a bench of Justice G.S. Ahluwalia while dismissing an application moved by Applicant/accused to recall a prosecution witness for cross-examination on the grounds that his lawyer could not cross-examine the witness as the members of the bar were abstaining from work on the date when his case was listed remarked, "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." (Vipin Rajput Vs. State of MP)
Facts of the case
The present application under Section 482 of CrPC was filed against the order passed by Special Judge (POCSO Act), Datia by which application filed by the applicant under Section 311 of CrPC was rejected.
On 28.12.2021, trial was fixed for examination of Ranjana Chauhan. Her examination-in-chief was recorded, however, a prayer was made by the applicant that since the lawyers are abstaining from work, therefore, one more opportunity may be granted to cross- examine her. Accordingly, cross-examination of the witness was deferred with a specific observation that on the next date of hearing, the applicant shall cross-examine her and the case was fixed for 11.01.2022. On 11.01.2022 the prosecution witness Ranjana Chauhan was present, but a pass-over was sought on behalf of the applicant. Accordingly, the case was taken up at 05:15 PM, however, counsel for the applicant refused to cross-examine her. Accordingly, the right of the applicant to cross-examine Ranjana Chauhan (PW-18) was closed. The applicants filed an application under Section 311 of CrPC which has been dismissed by the impugned order dated 05.04.2022.
Contention of the Parties
Challenging the order passed by the Court below, it was submitted by the counsel for the applicant that the prosecution witness Ranjana Chauhan (PW-18) is the Investigating Officer and is an important witness and in case, if the applicant is deprived of his right to cross- examine her, then it would cause irreparable loss to the applicant. It was further submitted that it is clear from the note appended in the deposition-sheet of the prosecution witness Ranjana Chauhan (PW-18) that on 28.12.2021 the lawyers were abstaining from work and it is also clear from the order dated 11.01.2022 that counsel for the applicant had refused to cross-examine her, therefore, one last opportunity may be granted to cross-examine Ranjana Chauhan (PW- 18) and since she could not be cross-examined only due to the fault on the part of the counsel for the applicant, therefore, the counsel for the applicant was ready and willing to not only pay the expenses to the prosecution witness Ranjana Chauhan (PW-18), but is also ready and willing to pay the compensation out of his own pocket so that the valuable rights of the accused can be saved.
Per contra, counsel for the State has vehemently opposed the submissions made by the counsel for the applicant. It was submitted that the charge-sheet was filed on 30.11.2016 and the charges could be framed only on 08.02.2017 because at least on four occasions, counsel for the applicant had sought time to argue on the question of framing of charges. Furthermore, on 17.07.2017 Vinod Kumar (PW-1) had appeared, but his examination was deferred at the request of counsel for the applicant. On 28.12.2021 prosecution witness Ranjana Chauhan (PW-18) was present, but her cross-examination was not done as the lawyers were abstaining from work. On 29.12.2021 also counsel for the applicant did not cross-examine Ranjana Chauhan (PW-18). Thereafter, on 11.01.2022 also counsel for the applicant did not cross-examine Ranjana Chauhan (PW-18). The trial is more than five years old and speedy trial is not only the fundamental right of an accused, but also a fundamental right of the victim, which cannot be harassed at the sweet will of the applicant.
Courts Observation and Judgment
The bench taking note of the Supreme Court judgment in the case of Ex-Capt. Harish Uppal Vs. Union of India and another reported in (2003) 2 SCC 45 remarked, "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 bench taking note of the causal behavior shown by the Advocate remarked, "Under these circumstances, this Court is unable to accept the contention of the counsel for the applicant that the counsel is ready to pay the compensation as well as expenses to the witness out of his own pocket. 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."
The bench dismissing the application remarked, "Since no jurisdictional error could be pointed out by the counsel for the applicant, therefore, the application fails and is hereby dismissed.
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)."
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