Kerala High Court Recalls Witnesses Cross-Examined By Accused Himself After Lawyer Quit, Cites Violation Of Right To Fair Trial

The Kerala High Court, in a recent judgment, allowed a prayer for the recall of two prosecution witnesses, who were cross-examined by the accused himself without a counsel present.Justice V.G. Arun opined that the trial court ought to have made the accused aware of his right to be defended by a State-appointed lawyer when his former lawyer relinquished vakalath.Referring to Section 304 of the Code of Criminal Procedure, which lays down a duty upon the Sessions Court conducting a trial to assign a pleader to an accused not represented, the Court observed:“The above provision is in tune with Article 39A of the Constitution of India, which envisages grant of free legal aid to the needy by the State… A perusal of the proceedings of the trial court..reveals that the court had not put the petitioner on notice regarding his right to be defended by a pleader assigned by the State. Even if it is for the accused to decide whether he wants to conduct the case himself or through a lawyer assigned by the court, while taking that decision, the accused should be aware about the options available to him.”The petitioner in the case is accused of the offences under Sections 341, 323, 324, 294(b) and 308 of the Indian Penal Code. The case is pending before the Assistant Sessions Court, Thrissur.Although he had engaged a counsel of his choice to defend him, the vakalath was relinquished on the date on which the witness was to be examined. This resulted in a situation where he was forced to cross-examine witnesses on his own. Later, when another counsel was engaged, certain infirmities were pointed out regarding the cross-examination already conducted by the petitioner/accused. An application for recall of these witnesses was filed but the trial court dismissed the same. Aggrieved, he had come before the High Court challenging this.Allowing the plea, the Court further remarked:“The court below having failed to alert the petitioner about the option of conducting the case through an Advocate assigned by the court, he was left with no option but to cross-examine the prosecution witnesses on his own, being unable to engage a Counsel of his choice. In such circumstances, denial of the prayer for recalling the witnesses will militate against the right to fair trial.”The Court thus quashed the trial court's dismissal order and directed it to recall the two witnesses for the petitioner/accused's counsel to conduct cross-examination.Case No: Crl.M.C. No.8016 of 2025Case Title: Down Victor v. State of Kerala and Anr.Citation: 2025 LiveLaw (Ker) 784Counsel for the petitioner: Sarath Babu Kottakkal, Archana Vijayan, SebastinCounsel for the respondents: Vipin Narayanan – Public ProsecutorClick to Read/Download Judgment

Kerala High Court Recalls Witnesses Cross-Examined By Accused Himself After Lawyer Quit, Cites Violation Of Right To Fair Trial

K. Salma Jennath

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