Defense lawyer appeared as prosecution witness
sachin sethi
(Querist) 03 December 2014
This query is : Resolved
In an interesting case under section 292/384 IPC a lawyer after 5 days of appearing on behalf of defense was cited as a witness of recovery of some articles by the prosecution and later on examined as a witness in the case on behalf of prosecution.......now though not ordered so far by the court yet the prosecution wants the defense counsel to relinquish his vakalatnama at the stage of final arguments by way of filing an application......
Now my queries are:-
1. Whether the application of prosecution is hit by section 303 cr.p.c. and article 22 (1) of the constitution denying the accused to have a lawyer of his choice when he wants to continue with same lawyer.....
2. Whether in such a situation it will amount to professional miscoduct on the part of defense counsel, (especially when he has deposed truly in the evidence) to continue with the case......
3. I have a citation reported in AIR KERALA 1989 Pg. 244 on this aspect that it is neither the professional misconduct nor does the lawyer need to relinquish his vakalatnama......please quote any other rulling specifically on the same point........
Thanks.....
sachin sethi
(Querist) 04 December 2014
Oh thts great Mr. Devajyoti Barman.....with due respect i thought that it is a forum for legal discussion aimed at self help and helping others by way of discussion....I just meant that if any of repected experts have something to discuss or guide they may enlighten me........anyways thanks for such a great help.........
Guest
(Expert) 04 December 2014
Mr. Advocate Sachin Sethi,
Frankly speaking, your statement, "i thought that it is a forum for legal discussion aimed at self help and helping others by way of discussion....I just meant that if any of repected experts have something to discuss or guide they may enlighten me" has little relevance on account of the following reasons:
Being an advocate, please don't mind, your first fault is that you have not introduced yourself as an advocate and also not shown any desire of getting helped in sorting out your problem to fight the case for your client, as of help by your fellow advocates.
Secondly, being an advocate, instead of expressing your own views on the issue, you have simply put a straight question to the members to "whether the application of prosecution is hit by section 303 cr.p.c. and article 22 (1) of the constitution. So far as discussion is concerned, any one-sided discussion, though can help a layment to have a general idea in layman's language, but cannot prove helpful to a lawyer, unless he expresses his own views on legal angle, he wants to make his knowledge sound to be ready to fight the case of his client. So, it would have been better for you to seek analytical review of your own opinion to help you properly address your client related problem.
Similarly, by quoting 1989 judgment, you simply asked the members to quote any other ruling by quoting, instead of expressing your own views what type of doubt you have about that why that should not be sufficient to serve your purpose. You can well understand, all rulings are neither on hand nor on tips of any of your brethren fellows. That takes a lot of time. Would you like to waste a lot of time in search of the rare type of ruling just for free advice to some of your client. So, had you introduced yourself and requested appropriately to seek help to help further to your client, I am sure Mr. Barman would not have made such comments.
Although I have the reply for your problem, but I want you to express your own opinion also, not hired from the 1989 judgment, for the sake of true sense of discussion. But still, I may also confirm that I won't prefer to waste time in searching desired rare type of additional ruling.
sachin sethi
(Querist) 07 December 2014
Thanks Mr. Dhingra....i admit it was my fault to not to introduce myself as a lawyer as well as to seek free advice for my client and further for waisting time of my learned brothers....but it was purely unintentional.....in addition to it i never want any of my learned brother to waste his precious time in searching any rare rulling.....sorry for any inconvenience.....i only meant to discuss a rare legal situation with my learned brothers with referrence to the legal provisions mentioned hereinabove.....so far my opinion is concerned over the matter i would certainly have opined upon it had i not been in a dilemma myself......i personally do not want to opine anything over this issue, except i think its possible with the help of legal provisions already mentioned; till i am sure about it....thats why i only asked for advise and not for search any rullings for me or any free advice for the sake of my client......so right now i m working on it with a hope to achieve some solutions......but i also welcome any discussion without putting any of my learned brothers in pain of searching anything for me......thanks once again....
Guest
(Expert) 07 December 2014
Dear Sachin,
You are welcome and thanks for realising your fault. But still, You have not clarified whether you are the defence cousel against whom the question of professional misconduct has been raised, or it is you, who have raised the question of professional misconduct on the part of your opposite lawyer.
However, I am sure, had you introduced yourself and described your real problem or dilema, several of your advocate brethren would have come out openly with their opinion to help you sort out your problem. May your own perception be right or wrong but that with some reason of your belief was desirable to evoke discussion at length. That way you could have been able to gather much to form some definite opinion of your own.
Anyway, according to my views, until the client is satisfied, the opposite party has no right to decide about professional miscoduct of defence cousel. It is for the client to decide whether there was any misconduct on the part of his defense counsel in deposing on behalf of the prosecution, if he was compelled to appear as a prosecution witness by any reason by the permission/order of the court, until the intentions of the defence lawyer were not wrong or deceptive towards his client vis-a-vis the trial in his case. So, if the question is aimed at you, as a defence counsel, if your client still poses trust and confidence in you, you should not be wrried about your opposite advocate's demand.
T. Kalaiselvan, Advocate
(Expert) 08 December 2014
A very healthy discussion and a convincing reply by expert Mr. Dhingra, hope learned brother advocate is convinced too.
Guest
(Expert) 08 December 2014
Dear Kalaiselvan,
Thanks for your appreciation.
