Madhya Pradesh High Court
Kalyansingh And Anr. vs State Of M.P. on 9 January, 2001
Equivalent citations: 2001(5)MPHT500
Author: J.G. Chitre
Bench: J.G. Chitre
ORDER J.G. Chitre, J.
1. Shri Sanjay Jain is present in person. All of them are heard. Shri Sanjay Jain has been heard who narrated that when the witness P.W. 4 Ramkumar was being examined and cross-examined, he was present in the court hall alongwith Shri M.S. Chouhan. He submitted that both Shri M.S. Chouhan and Shri Sanjay Jain happened to be the juniors working with Shri P.K. Shukla and when the said order was passed, Shri P.K. Shukla had come in the court hall and had taken the charge of the said sessions case on behalf of the petitioners. Shri P.K. Shukla who happens to be an advocate of standing of 30 years practice at Bar explained the situation by making the submissions which can be quoted as mentioned in paragraph hereunder :-
2. Shri P.K. Shukla submitted that he was defending the petitioners at the relevant time in the court of 13th Addl. Sessions Judge, Indore, Shri A.M. Saxena on 21-4-98. He submitted that when the prosecution witness P.W. 4 Ramkumar was being cross-examined, Shri PK. Shukla, made suggestion to him suggesting that he was giving false evidence against the present petitioners (the accused). Shri P.K, Shukla submitted that the learned Judge disallowed the said question by holding that the said question was not fit to be asked to said witness. Shri Shukla further submitted that he politely submitted before the learned Judge that he was ready to face the consequence of asking the said question because he was so instructed by the petitioners. He submitted that it was a murder case and, therefore, he was duty-bound to make such suggestion to said witness.
3. After the said conversation, Shri P.K. Shukia submitted that he was not able to conduct the said case further and he sat down. According to Shri Shukla, thereafter the order which was being challenged by this petition came to be passed.
4. Shri S.K. Vyas, counsel appearing for the petitioners submitted that the trial in which the said P.W. 4, was being examined, was a serious trial involving a charge of murder on the petitioners and in the event of conviction, the petitioners would have been sentenced with the sentence of death also. Shri Vyas submitted that when a senior advocate unables to conduct the case on account of some inevitable reason, a junior advocate would not be able to carry further the cross-examination without proper instructions. He submitted that if the trial is involving a serious charge like that of murder, the junior advocate would be necessarily finding it risky to shoulder such responsibility. It is the submission of Shri S.K. Vyas that in such cases, the Addl. Sessions Judges, Sessions Judges should be liberal in the interest of justice in allowing the advocates to cross examine such witnesses and in the event of a prayer being made for recalling such witness(s) a liberal attitude is needed to be taken and such witnesses be recalled.
5. Shri Desai submitted that if the charge is of commission of serious offence, the accused deserves to be given full opportunity of being defended by a senior advocate. He submitted that if such situation arises, according to him, the norms of a criminal jurisprudence permit recalling of such witnesses. However, Shri Desai submitted that appropriate order be passed by this Court which would be giving guidance to subordinate Courts in such situation in future. He submitted that there would be a guidance to the advocates also as to what should be done in such situation for the purpose of keeping the atmosphere of the Court-hall comfortable, pleasant disciplined and smooth.
6. In view of these submissions and the clarification given by Shri Sanjay Jain Advocate, the situation gets clarified. After understanding the situation, this court discharges the notice issued to concerned advocate who was directed to show cause as to why an appropriate action be not taken against him for inviting the Contempt of Court.
7. No citizen, no lawyer, no party can afford to insult a court when the Court is sitting for the work. Refusal to cross-examine or refusal to answer the query or make gestures indicating disrespect towards the authority of Court ab initio comes under the category of an act of per se contempt. But in all such situations, the Court should be cautious in coming to the conclusion and taking recourse to provisions of Contempt of Courts Act. In many cases the said act may have been prompted on account of innocent reason. There may be a situation arisen out of misunderstanding. There may be a situation arisen out of abrupt human behaviour which is uncontrollable on account of emotional out burst of feelings. It is not necessary that in all cases, one should find an intention of undermining the authority of the court. But when the intention behind such an act is clear and intending towards, undermining the authority of the court, the court should not hesitate in taking appropriate action for curbing down the tendency of undermining the dignity and authority of the Court.
8. As submitted by Shri P.K. Shukla in the present case Shri Shukla found it very difficult to go further in cross-examining the said witness. Being an experienced lawyer he decided to keep cool. When such an experienced advocate is unable to go further for cross examining an important witness, it was necessary on the part of the judge to wait for situation getting cooled. In such cases he should give the accused an appropriate opportunity of being defended by a lawyer of his choice as provided by our constitution and should give him appropriate time to engage another lawyer of his choice and to instruct him to defend the accused.
9. In such a situation the concerned advocates are advised to write down the question intended to be asked in the form of application and to make a request to the court in writing for permitting such question to be asked. That enables such an advocate to put such a question on record by way of written prayer. In the event of hearing of an appeal consequential to the result of such case, the concerned advocate arguing the appeal can explain the situation to the higher court and the interest of such accused can be protected. At the same time the subordinate judges should also think it seriously that an accused is entitled to put a suggestion to the prosecution witness suggesting him that evidence which has been given by him against the accused is false. It is a right of the accused to make such suggestion. There is nothing sentimental in that context. When the advocate submits that he is prepared to face the legal consequences, the learned Judge should not hesitate slightly in allowing such question. In the event of such application being submitted none should feel being hurt neither the judge nor the advocate. If such practice is followed, this court is confident that there would be a smooth flow of conducting a case which would not create any hardle in conducting the case.
10. All murder cases are serious cases because if the charge is proved, the accused is likely to get two sentences (i) capital one in the nature of sentence of death and (ii) a lesser one in the nature of imprisonment for life, if the guilt is proved in context with provisions of Section 302 I.P.C. If the conviction is for an offence punishable under Section 304 Pt. I or Part II, even then a sentence of longer term of imprisonment is the likely effect of a conviction. Incarceration of a moment, live aside, an hour, day, month or an year is destroying the castles of liberty. None can tolerate incarceration even momentary. When the charge is involves a serious punishment the accused is entitled to defend himself lawfully and with the help definately because every accused is entitled to be defended by a lawyer of his choice. If the accused is not capable of engaging a lawyer, the accused should be given a lawyer at the cost of government in view of appropriate legal aid scheme, but in no case the accused be asked to conduct his own case in which he has been charged for committing murder on account of the seriousness of the charge and severeness of the sentence. Therefore, the judge conducting the case cannot compell such an accused to get the assistance of any junior and inexperienced advocate who is working with a senior advocate who is unable to conduct the case further and not the lawyer of choice of accused. The accused should also be not asked to cross-examine such witnesses. He cannot also ask a person who is not a lawyer of the choice of concerned accused to conduct such a case. It infringes his fundamental right which is guaranteed by Articles 20 and 21 of the Indian Constitution. Apart from that, justice would not be benefited by such practice. The disposal should be qualitative and not quantitative. The days spent in conducting such cases, the days spent in recalling such eye witnesses or important witnesses can well be explained by making appropriate note in the record. None can be tried hastily and forgoing the protection guaranteed by the Constitution.
11. When an eye-witness is being examined in a murder case, the accused should get ample opportunity of cross-examining him or putting on record the defence of the accused. When the accused is ready to face legal consequences of questions being asked, the court should be liberal in allowing such questions unless the court finds those questions totally irrelevant or scandalous. Shorter being inadequate cross examination is deprecated. It does not permit a person who has been put to face the trial to put his case completely. Secondly, it does not allow the higher court to understand the situation and to get itself acquainted with the facts. It is to be noted by the trial courts that they get the advantage of observing the demeanour of the witness which higher courts do not get when they hear the bail-matters out of the decisions passed by such Courts in trial.
12. After hearing Shri Vyas, this Court comes to a conclusion that the witness who was requested to be recalled, was really an important witness who should have been recalled. The powers conferred on the Criminal Courts in view of the provisions under Sections 311, 231 of the Code of Criminal Procedure are exhaustive and they are to be used freely with broader approach. Those provisions are to be used for the purpose of achieving the important obligation of administration of justice. Exercise of such power is to be done in the interest of justice.
13. In view of the submissions advanced, it is now noticed that some judges follow the practice of deciding the point of relevancy at later stage. Generally, the orders are passed "the question of relevancy would be decided later on. Objection stands rejected at present" Such instances also create unpleasantness and uncertainty. In very rare cases such point should be deferred for decision. The prudent way to decide whenever such objections are decided once the decision is given by the court the party against whom such decision goes, should not be unpleasantly expressive.
14. Thus, this petition is hereby finally decided and allowed. The order which is passed by the learned Judge is hereby set- aside and the learned Trial Judge is hereby directed to recall P.W. 4 Ramkumar for further cross-examination and his cross-examination be fixed as per availability of space on the board of Trial Court. For that purpose initially the said witness and the advocate engaged, Shri S.K. Vyas should remain present punctually before the trial court 28th September, 2001. For that purpose the said witness be summoned by the Trial Court.