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Judgment
Padmini Jesudurai, J.—The petitioners who are facing trial before the Sessions Judge, Chengalpattu, in S.C. No. 202 of 1986 for offences
under Ss. 302 read with 34; 498A read with 34 and 316 read with 34 I.P.C. and under S. 4 of the Dowry Prohibition Act, 1961, invoke the
inherent powers of this Court under S. 482, Crl. P.C. to quash the proceedings so far conducted by the Trial Court, turning down their request to
adjourn the case to enable them to engage another counsel of their choice, necessitated by the sudden illness of the counsel already engaged by
them. They also seek transfer of the above case, from the above court to any other court of competent jurisdiction.
Facts briefly are:--The first petitioner had married Vijayalakshmi alias Vijayakumari. a Science Graduate, in 1984. On 1.12.1985 the said
Vijayakumari died under suspicious circumstances. On a report given by the father of the deceased, a case in Cr. No. 393 of 1985 of N-l Ponneri
Police Station was registered, initially under S. 174, Crl. P.C., which after investigation, was altered into one under Ss. 498A, 302 and 316 read
with 34 I.P.C, and S. 4 of the Dowry Prohibition Act (as amended in 1984). A charge sheet was filed for the above offences against the
petitioners, who are respectively, the husband, mother-in-law and father-in-law of the deceased Vijayakumari. On 26th November, 1986, the
case was committed by the Judicial Second Class Magistrate, Ponneri to the court of Sessions for trial. After framing charges, the Sessions Judge
posted the case to 27th July, 1987 to 29th July, 1987 for trial. On 23rd December, 1986, on behalf of the petitioners, Advocate, Thiru Sam v.
Chelliah and others filed a Memo of appearance in the Sessions Court.
The petitioners allege that on 24th July, 1987 in the afternoon, their counsel Thiru Sam. v. Chelliah, suddenly took ill and expressed his inability
to go over to Chengalpattu on 27th July, 1987 and on the subsequent days to defend them and requested them to engage some one else for the
defence. The counsel also suggested the names of a few Advocates whom the petitioners enquired and found that those Advocates, due to their
prior engagements, were not in a position to accept the brief and defend them at Chengalpattu on 27th July, 1987. Since the case had a
background of murder due to dowry harassment, the State had appointed an Assistant Public Prosecutor, to assist the Public Prosecutor in the
Sessions Court at Chengalpattu and it was also alleged that, in addition to that, the father of the deceased; had engaged a senior counsel to assist
the prosecution. In the above circumstances, the petitioners were not able to engage a counsel of a calibre, equal to that of those conducting and
assisting the prosecution and, therefore, on 27th July, 1987 the petitioners appeared before the Sessions Court and filed an application for
adjournment on the above grounds.
Learned Sessions Judge was not willing to grant an adjournment and instead, offered legal aid, which the petitioners did not accept. The
Sessions Judge, therefore, considering the fact, that Prosecution witnesses were in attendance, examined P. Ws.1 to 4 in chief. The petitioners
were present, but were undefended. The case was adjourned to the next day. On 28th July, 1987, P. Ws. 5 to 12 were examined in chief and the
case was adjourned to 30th July, 1987. None of the prosecution witnesses was cross-examined, since the petitioners were not defended by any
counsel. At that stage, the petitioners approached this Court for quashing the proceedings so far conducted in the Sessions Case, as being violative
of Art. 22(1) of the Constitution of India, as also being opposed to principles of natural justice.
Learned Public Prosecutor filed a counter that though an Assistant Public Prosecutor had been appointed by the Government, to assist the
Public prosecutor in the Sessions Court at Chengalpattu, the further allegation that the father of the deceased had engaged a senior counsel to
assist the prosecution was false, that the petitioners on 24th July, 1987 had made an unsuccessful attempt in this Court to have the proceedings
quashed by filing Crl. M.P. No. 7035 of 1987 which later they withdrew as ""not pressed"", and that the prayer for adjournment on the ground of
sudden illness of the counsel, was not bona fide and was intended to protract the trial and to defeat the ends of justice.
Learned Counsel for the petitioners reiterated the facts set forth by the petitioners in their affidavit filed in support of the petition. Learned
Counsel also placed reliance upon certain decisions, which I shall refer to presently.
The question that would arise for consideration is whether the proceedings so far conducted by the learned Sessions Judge in examining P. Ws.
1 to 12 could be legally sustained?
A few stray decisions of certain High Courts rendered under similar situations could offer us guidance. In Indar Narain v. The State AIR 1952
P&H 83, a single Judge of the Punjab High Court, in a trial for an offence under the Prevention of Corruption Act, 1947 and S. 161 of the I.P.C.
when the counsel who had hitherto been defending the accused suddenly took ill and was unable to be present in Court and his request for
adjournment was turned down and only two hours'' time was given to the accused to engage a new counsel, struck down the proceedings and
observed:
The reason given by the Magistrate that if he had allowed this petition, the State would have incurred a good deal of unnecessary expenses in so
far as their witnesses were present, loses sight of the constitutional rights of a citizen. In all civilized countries, wherever English system of
jurisprudence prevails, Courts have always tried to give, every kind of facility to an accused to defend himself. Merely because, there were certain
witnesses for the prosecution present, does not seem to me, to be a sufficient reason, why the case should not have been postponed and the
prayer of the petitioner granted, if that was necessary in the interests of justice as I think that in this case it was.
Similarly, a Bench of the Calcutta High Court in Raj Kishore Rabidas Vs. The State, where also, the counsel who had hitherto been conducting
the case for the accused, had suddenly fallen ill, with no certainty, as to whether he would be able to attend the court the next day and the trial
court, appointed another panel lawyer immediately and went ahead with the examination of witnesses, held that the procedure was contrary to law.
The court observed:
We must say at once, that we do not appreciate that reason, to be sufficient or proper for insisting that the trial, which was one, on a charge of
murder punishable with death, should proceed in the absence of the defence lawyer, who has suddenly fallen ill. Adjourning a sessions trial is a
serious matter indeed, but absence of defence lawyer, for the reason of sudden illness, is no less. In the present trial, it was much more important
that the person on trial, facing a capital charge, should have the assistance of a lawyer, who had opportunity to prepare the brief, for proper
defence by effective cross-examination, than the trouble and cost to which, State would have been subjected, by an adjournment of the trial.
10 In Chellappan and Others Vs. State of Kerala, a Bench of the Kerala High Court, set aside the conviction and sentence passed by the trial
court and ordered re-trial, on the ground that the appointment of a counsel at State cost, just at the time of the commencement of the trial, without
giving the counsel any time to look into the papers, study the brief or consult the accused, was only a farce in a case of murder and the counsel so
appointed, could not have done any substantial help in the trial and that a reasonable opportunity to prepare the case ought to have been given to
the counsel. The Bench felt that confirming the conviction and sentence, under the above circumstances, would shock the Judicial mind and justice
would not be done to the accused.
The acting Chief Justice of the Sikkim High Court in Sambhunath Bhattacharjee Vs. State of Sikkim, setting aside the order of the Sessions
Judge, refusing to grant adjournment, on the ground of sudden illness of the counsel, who had hitherto been defending the accused and going ahead
with the trial, merely because ""six prosecution witnesses were present, after discussing the several principles involved in such a situation, has
summarised the legal position as follows:
I should not, however, be understood to lay down as a blanket proposition, that adjournment should be granted to the accused, whenever it is
prayed for on the ground of the absence of a lawyer of his choice. If in a given case, the court feels that the absence of the defence lawyer, is
wholly unjustified and/or the accused has not taken proper and diligent steps to secure or ensure his presence, an adjournment prayed on the
ground of the absence of the lawyer, may be refused. But, by and large, the Court must see that the accused, is not denied the right to be defended
by a legal practitioner of his choice and is given reasonable opportunities to secure the presence of such lawyer and where, as here, the lawyer
chosen by the accused has suddenly fallen ill, which has incapacitated him, from attending the court to defend the accused, the Court should not
hesitate to grant adjournment. After all that has been said, about speedy disposal of cases and arrears in courts, one must not forget that, though
speed is good and is very much desirable, it is depreciable, when it amounts to rash speed and however good, speedy disposal of a case may be,
it can never be desired, it is achieved at the cost of established notions of justice, which cannot always be, administered by the hands of the clock.
This I feel, reflects the true position of law.
It follows, therefore, that the trial court under such situations, has first to decide, whether factually, the prayer of the accused that the counsel
has suddenly taken ill, is true or whether it is only an attempt to get an adjournment to protract the proceedings. If the Court feels that factually, the
statement that the counsel has suddenly taken ill, is true and if the court finds, that ever thereafter, the accused has taken every steps within his
powers, to engage another counsel and despite the same he had not succeeded and was forced to pray for an adjournment, the court has to give
an adjournment. The second proviso to S. 309(2) , Crl. P.C., which lays down that no adjournment or postponement shall be granted without
examining the witnesses who are in attendance also permits the Sessions Judge for special reasons to be recorded in writing to grant an
adjournment, even when witnesses are in attendance. The section also provides, that in appropriate cases, adjournment could be granted, on
payment of costs, either by the Prosecution or by the accused. Under those circumstances, the mere fact that witnesses are in attendance, would
not be a ground for refusing an adjournment and examining the witnesses when the accused are not defended by any counsel. As indicated earlier,
the question of adjournment would come in, only if the court is satisfied, that the request for adjournment is necessitated, by the sudden illness of
the counsel.
In the instant case, facts are not seriously controverted. The petitioners had engaged a counsel (Thiru Sam v. Chelliah) of their choice and even
on 23rd December, 1986 a memo of appearance had been filed by the counsel on behalf of all the petitioners. The trial court also, had fixed the
date of trial, well in advance. However, the counsel had suddenly taken ill on the last working day before the commencement of the trial. The
counsel is from Madras and the trial was to be in Chengalpattu, which is about 56 K.M. from Madras. In a case calling for capital sentence and
that too, arising out of dowry harassment, wherein an Assistant Public Prosecutor, had been specially appointed by the Government to assist the
Public Prosecutor in the Sessions Court, it was but natural for the petitioners, to desire to have a counsel of equal calibre, to effectively conduct
their defence. It is also common knowledge that Advocates feel reluctant to accept briefs, without sufficient time to study the papers, receive
instructions from clients and do justice to them in court, especially in a case calling for capital punishment. The petitioners have also sworn to an
affidavit that, after the counsel took ill, the counsel suggested the names of a few Advocates whom they could contact and that they did contact
those Advocates immediately and that those Advocates, could not accept the brief due to prior engagements. It was under those circumstances,
that the petitioners, were forced to pray for adjournment of the case, even though the witnesses summoned for the day, were present. The trial
court ought to have granted an adjournment, at least by requiring the petitioners to pay the costs incurred, in summoning the witnesses actually in
attendance.
Learned Public Prosecutor contended that the proceedings of the learned Sessions Judge, in recording the Chief examination of P. Ws. 1 to 12
need not be quashed and that instead, the Chief Examination may be retained and an opportunity may be given to the petitioners, to recall the
above witnesses to cross examine them. I am unable to accept the above suggestion of the learned Public Prosecutor. The petitioners in their
affidavit, have alleged that the learned Public Prosecutor in the Sessions Court, elicited the Chief examination by putting leading questions on vital
matters, when the witnesses were unwilling to answer. Whatever that be, we cannot lose sight of the fact that, the stage which is most important to
an accused in the entire criminal proceedings, is the time, when the prosecution witnesses are actually in the box giving evidence. The evidence then
recorded, is the substantive evidence, which would be relied upon by Courts for final adjudication. The charge in the instant case is no trivial one,
but which, if proved, would be brought within the category of ''''rarest of rare cases"" as being a murder committed for dowry calling for capital
sentence, such a charge would be proved, invariably by oral evidence. Whatever arguments that could be addressed, whether before the trial court
or before any other higher court, which might have occasion to deal with the case, whether at the instance of the prosecution or at the instance of
the defence, or even at the instance of a private party, would have to be based upon the evidence that is recorded at the time when the witnesses
are in the box. The presence of the counsel for the accused, at the stage of the chief-examination, in a case of this nature, could not be brushed
aside as redundant. The counsel has to cross-examine witnesses, not by going through the script of the Chief-examinations recorded in his
absence, but by seeing witnesses actually deposing the chief. If under S. 280, Crl. P.C. the demeanour of a witness could be relevant to a trial
Judge, who is empowered to make a record of it, so that even the appellate courts can have the benefit of the impression that the witness had
produced on the trial Judge, certainly the demeanour of a witness, would give the cross-examining counsel, his clue regarding the truth or falsity of
each portion of the evidence given by the witness in the chief-examination. The look or manner of a witness, his hesitation, his doubts, his apparent
reluctance or evasive attitude, would all be meaningful to a counsel, who proposes to cross-examine a witness. It is no justice to record the chief-
examination of twelve witnesses, in a case of capital sentence, when the accused are undefended and then tender the witnesses for cross-
examination, I have no hesitation to quash the entire proceedings.
Accordingly, the evidence of P. Ws. 1 to 12 recorded by the Sessions Judge, Chengalpattu in S.C. No. 202 of 1986, is hereby quashed and
the case is transferred to the file of the Sessions Judge, North Arcot at Vellore for disposal according to law.