Change Of Counsel Is Not Grounds To Recall Witness, Accused Can't Hijack Proceedings Of Court As Per Convenience: Madhya Pradesh HC

The Indore Bench of Madhya Pradesh High Court has held that change of counsel cannot be a ground to recall a witness.A single judge bench of Justice Gurpal Singh Ahluwalia observed “It is clear that only change of counsel cannot be a ground to recall a witness. Even otherwise, convenience of witnesses cannot be ignored and the accused cannot be allowed to hijack the proceedings of the trial Court as per his own convenience. Furthermore, applicant has also not filed copy of the deposition sheets of Dr. U.S. Tiwari to show that which important questions were not put to him. This Court cannot presume that the lawyer who was engaged by applicant voluntarily was incompetent.”An application under Section 528 of Bhartiya Nagarik Suraksha Sanhita was filed against the order passed by Additional Sessions Judge by which application filed by the applicant for recall of a prosecution witness for cross-examination was rejected.The counsel for applicant submitted that earlier Advocate appearing on behalf of all the accused persons had cross-examined the aforesaid prosecution witness. Thereafter, another counsel was engaged by the applicant. It was found that certain important questions were not put by the previous counsel. The counsel for applicant submitted that earlier counsel could not ask certain important questions to the witness and, therefore, the prosecution witness should be recalled in order to avoid any irreparable loss to the applicant.The issue before the Court was whether a witness can be recalled merely because of change of counsel.The Court referred to State (NCT of Delhi) Vs. Shiv Kumar Yadav and another (2016) and said that unnecessary adjournments and harassment of witnesses should be avoided.The Court further relied upon State of U.P. Vs. Shambhu Nath Singh (2001) wherein it was held, “If any court finds that the day-to-day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e. remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court).”The Court referred to the decision of Supreme Court in Mohd. Khalid Vs. State of W.B. (2002) where the court took note of the N.G. Dastane case wherein it was held that “An advocate abusing the process of court is guilty of misconduct. When witnesses are present in the court for examination the advocate concerned has a duty to see that their examination is conducted. We remind that witnesses who come to the court, on being called by the court, do so as they have no other option, and such witnesses are also responsible citizens who have other work to attend to for eking out a livelihood. They cannot be treated as less respectable to be told to come again and again just to suit the convenience of the advocate concerned.”Thus, the High Court held that only change of counsel cannot be a ground to recall a witness.The application was hence, dismissed.Case Title: Rinku Baraiya Versus The State Of Madhya Pradesh And Others, Misc. Criminal Case No. 38555 Of 2024Counsel for Applicant: Advocate Alok DubeyCounsel for Respondent No. 1/State: Advocate Ajay Kumar NirankariCounsel for Respondent No. 2: Advocate Anil Kumar MishraClick Here To Read/Download Order

Change Of Counsel Is Not Grounds To Recall Witness, Accused Can't Hijack Proceedings Of Court As Per Convenience: Madhya Pradesh HC

Anukriti Mishra

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