KURIAN ABRAHAM Vs. GOPALAN NAIR

JUDGEMENT

(1.) This case arose on the complaint of a litigant who had engaged the advocate concerned in a criminal case. The litigant had launched a criminal prosecution under S. 323 of the Travancore Penal Code in the Second Class Magistrates Court at Kottayam. The advocate was engaged by him to conduct the prosecution. His complaint is that two of the principal witnesses whom he had summoned to give evidence in his favour and who were present in court were given up by the advocate without consulting him and without his knowledge and consent. The matter was referred to the Bar Council Tribunal which has submitted its report. On the question as to whether the advocate gave up the witnesses without the knowledge and consent of the complainant, the finding recorded by the Bar Council Tribunal is against the litigant. They have stated that in their opinion the witnesses were given up by the advocate with the knowledge and consent of the litigant and there was no suppression of any facts from him. With regard to the power of giving up witnesses which an advocate can exercise when he is engaged by a litigant, the Bar Council Tribunal has also recorded its opinion based upon judicial decisions, that until the authority conferred upon the advocate to act, plead or appear is withdrawn, he can exercise his discretion in examining or refusing to examine any particular witness. Therefore, what the advocate did in the present case is in the opinion of the Bar Council Tribunal within the scope of the authority conferred upon him by the litigant.

(2.) The learned Advocate General appears in his official capacity and also on behalf of the Advocates Association and the President of the Bar Association in Ernakulam also appears. Both of them endorse the views expressed by the Bar Council Tribunal and say that there is no case made out against the advocate.

(3.) Mr. T. K. Joseph who appears for the Advocate in question invites the attention of the court to certain judicial decisions in England. In the case reported in 157 English Report 1436 at page 1449 this question as the power of a counsel to decide whether a witness should be examined or not was considered and dealt with as follows:-