CHATHUKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) This is a reference made by the District Magistrate (Judicial), Kozhikode, under S.438 of the Code of Criminal Procedure. The reference arises out of C.C. No. 1986 of 1957 on the file of the Sub-Magistrates Court, Kozhikode. That was a case in which the charge against the accused was under S.224, Indian Penal Code, for escape from lawful custody after he was arrested by the Customs Officials on 4-11-1957. The escape, according to the prosecution, was on 5-11-1957. On 11-11-1957 Shri. V. Gopalakrishna Iyer, advocate, Kozhikode, acting as counsel for the accused, is said to have produced him before the Assistant Customs Collector Kozhikode. Shri Gopalakrishna Iyer subsequently moved an application for bail on behalf of the accused and also got him enlarged on bail. In the case also Shri. Gopalakrishna Iyer filed a memo of appearance on behalf of the accused, but he was included in the list of prosecution witnesses for proving the fact that he had produced the accused before the Assistant Customs Collector on 11-11-1957. On account of this circumstance the Assistant Public Prosecutor who was conducting the prosecution objected to Shri. Gopalakrishna Iyers appearance in the case for the accused and made an application to the Magistrate for compelling him to retire from the case. The Magistrate granted this application holding that Shri. Gopalakrishna Iyer was a material witness and that it was better for him to withdraw from the case. The accused, who was thus deprived of the service of his counsel, then moved the District Magistrate, in revision, and after examining the records of the case the District Magistrate has made the present reference recommending to this court that the Magistrates order should be quashed and Shri. Gopalakrishna Iyer should be allowed to appear in the case.

(2.) The question whether the court has got jurisdiction to forbid an advocate to appear in a particular case and under what circumstance the court should exercise that jurisdiction, if it has such jurisdiction, has been considered by the Bombay High Court in Emperor v. Dadu Rama (AIR 1939 Bom. 150). It has been observed in that case:

(3.) Applying the principles enunciated in the above observations to the present case, we have absolutely no doubt that the application made by the Assistant Public Prosecutor for compelling Shri. Gopalakrishna Iyer to withdraw from the case was most mischievous and made without good faith. All that Shri. Gopalakrishna Iyer was cited to prove was that he had produced the accused before the Assistant Customs Collector on 11-11-1957. That is a matter not disputed by the defence, and to prove the same fact the prosecution had cited the Assistant Customs Collector also. Shri. Gopalakrishna Iyer could have given evidence about this fact and still continued to appear for the case without causing any embarrassment to the accused or to the court or even to himself. The insistence of the Assistant Public Prosecutor that Shri. Gopalakrishna Iyer should withdraw from the case must undoubtedly be due to his desire to deprive the accused of the services of a good counsel of his own choice. We, therefore, quash the order of the Sub Magistrate and allow Shri. Gopalakrishna Iyer to appear in the case. The reference is accepted, and ordered accordingly.