SANJEEV ALIAS SANJU Vs. STATE OF M P

JUDGEMENT

(1.) HEARD the Counsel for the parties and perused the order of learned Trial Judge annexed with the revision.

(2.) THE main grievance of Mr. Sharma is that the applicant, at no stage of the trial, had given any authority to Advocate Mr. Kaji to defend his case and Mr. Kaji on his own submitted a bail application on behalf of the applicant and also examined certain witnesses. Mr. Sharma further submits that though Mr. Kaji was engaged by the father of the applicant who is also a co-accused in the instant case of murder, the applicant has no confidence in the Counsel and the applicant has been living separately from his father for quite some time. Under the circumstances, the applicant filed an application under Section 311, Cr. PC before the Trial Court to summon the witnesses for their re-examination by a Counsel of his choice which has been rejected by the impugned order of the Trial Court. On the other hand, Ms. Alka Pandya, appearing for the State, vehemently opposes the submissions of Mr. Sharma on the ground that at no stage of the trial, the applicant raised an objection that he has no faith in the Counsel engaged by his father and further in view of the fact that the same Advocate had also moved an application for bail on his behalf it is not open to him to say that the cross-examination of witnesses by the said Counsel on his behalf was not valid. Ms. Alka Pandya further submits that if the application is allowed, further progress of the trial will be obstructed for no valid reason.

(3.) ON due consideration of rival submissions, I am of the view that the submissions of Mr. Sharma merit consideration. Needless to say that provisions of Section 303, Cr. PC are express enough to give such a right to an accused to engage a Counsel of his choice. Here the accused has been denied such a right and there is no material to show that he had given any authority in favour of the Counsel who had also appeared on his behalf, even though he was engaged by his father, a co-accused in the matter. Ordinarily, it is also the duty of the Court to ask the accused and give him opportunity to engage a Counsel of his choice. That apart, the right of the accused to be defended by a Counsel of his choice is also in built in Article 21 of the Constitution of India. Further, it is equally important to note that if the applicant was not given an opportunity to cross-examine the witnesses in respect of incriminating materials against him; by a Counsel of his choice, it would cause a serious prejudice to his rights and under such circumstances, impugned order would result in culminating or terminating the proceedings leading to miscarriage of justice, therefore, this Court sitting in revision ought to interfere with the order.