NIMBA Vs. STATE OF MYSORE

JUDGEMENT

(1.) This is a Revision Petition preferred by the Petitioners-Accused against the order of the learned Special Second Magistrate, Shimoga, in C.C. 545/54, refusing permission to their Advocate Sri Bhavanishankara Rao to appear for and defend them.

(2.) The facts that have given rise to this petition are briefly as follows : The Petitioners are under-trial prisoners in C.C. No. 545/54 on the file of the learned Special Second Magistrate, Shimoga. At a late stage of the enquiry, the Petitioners wanted to engage Sri Bhavanishankara Rao as their counsel to defend them in the case. The said Sri Bhavanishankara Rao was examined as P.W. 58 in the case for the prosecution. Therefore he filed an application to the learned Magistrate praying for permission to allow him to appear for and defend the accused. The learned Magistrate refused the said permission on the ground that as Sri Bhavanishankara Rao had been examined as a witness for the prosecution, it was not desirable to permit him to defend the accused. It is against this order that this Revision Petition is filed.

(3.) I am of opinion that the order of the learned Magistrate cannot he sustained. There is no rule of law that an Advocate who has appeared as a witness for the prosecution in a particular case should not appear or be allowed to appear for the accused in that case. If this proposition is accepted, it may lead to very serious and unexpected consequences, because the prosecution, if they so desire to deprive an accused of the services of an Advocate (whom he wants to defend), may cite him as a witness for the prosecution and examine him and thus deny the accused the services of the concerned Advocate. It is an inherent right of an accused to have a counsel of his own choice. No douht it has also to be conceded that Courts have got an inherent power to refuse permission to a counsel or to require him to withdraw from a particular case. What the Courts have to consider in such cases is whether the trial would be embarrassed by permitting an Advocate to appear for the accused. If the Court comes to that conclusion, then permission should be refused; if not permission should be granted.