KRISHNAN EZHUTHASSAN Vs. GOPALANKUTTY NAIR

JUDGEMENT

(1.) This Revision Petition is by the complainant in a defamation case pending before the learned Munsiff Magistrate, Pattambi. The case was that certain defamatory statements against the complainant were made by the accused in a petition presented by him to the Sub Inspector of Police and the Executive First Class Magistrate's Court, Ottapalam. During the trial of the case the complainant presented a petition seeking permission to examine the senior counsel appearing for the accused as a prosecution witness to prove publication of the defamatory matter on the ground that the Advocate had openly read it in Court in a previous case. It was further alleged in the same petition that if the advocate was permitted to be examined as a witness for the prosecution it will be highly improper for him to further conduct the defence case and in fairness to himself and the parties it is desirable that he does not continue to act as such. The petition was opposed by the accused as lacking in bona fides and as being put in merely to harass the accused by attempting to deprive him of the services of his counsel. The court permitted the complainant to cite the accused's advocate as his witness but held there is nothing improper in that advocate continuing to appear on behalf of the accused. It is the second part of the above order that is questioned before me. The court held that as the advocate was cited to prove only the reading of the record in court in a previous case a fact which the accused does not dispute and which the witness himself was prepared to admit, he is not a material witness and as such his continuance as the defence counsel can cause no embarrassment to any of the parties concerned. I am inclined to agree with the learned Munsiff Magistrate.

(2.) The accused person is entitled to select an advocate whom he desires to appear for him, and certainly the prosecution cannot fetter that choice merely by serving a sub poena on the Advocate to appear as a witness. On the other hand the court is bound to see that the due administration of justice is not in any way embarrassed. Generally, if an Advocate is called as a witness by the other side, it can safely be left to the good sense of the Advocate to determine whether lie can continue to appear as an advocate, or whether by so doing he will embarrass the court or the client. If a court comes to the conclusion that a trial will be embarrassed by the appearance of an Advocate who has been called as a witness by the other side, and if notwithstanding the court's expression of its opinion, the Advocate refuses to withdraw, in such a case the court has inherent jurisdiction to require the Advocate to withdraw." Vide Emperor v. Dadu Rama (AIR 1939 Bombay 150) followed in In re Chathukutty ( 1958 KLT 1142 ) In view of the formal and non controversial nature of the evidence to be given by the advocate it is difficult to see how his retention as the defence counsel can cause any embarrassment either to the court or to his client. The learned Munsiff Magistrate was right in not interfering in a matter best left to the good sense of the counsel.

(3.) The Revision Petition is without merit and has only to be dismissed.