K.S. Hegde, J.
1. The respondent as complainant filed a complaint against the petitioner in C. C. No. 1564 of 1962 on the file of the learned Special First Class Magistrate, Nanjangud, for an offence punishable Under Section 500 of the Indian Penal Code. In his complaint he has cited Sri Warayanarao and Sri Venkatarao as his witnesses. The prosecution case is that in the written statement filed by the petitioner in O. S. No. 171 of 1962 on the file of the Munsiff, Nanjangud, the petitioner had made defamatory statements. In O. S. No. 171/.62 Sri Venkatarao was the counsel for the petitioner. It is he who has filed the written statement into Court. Evidently he has also signed the written statement. After that written statement was filed, the respondent caused a notice to be served on the petitioner alleging that the petitioner had defamed him in view of the allegations made in the written statement and therefore be (respondent) proposed to proceed against him.
To that notice the petitioner caused a reply. to be sent through Sri Narayana Rao. It is alleged that the contents of the reply notice are highly defamatory. In order to prove that the written statement was filed by Sri Venkatarao in the instructions of the respondent and further to prove that the reply to the registered notice was-sent by Sri Narayanarao on the instructions of the petitioner, the complainant has cited Sri Venkatarao and Sri Narayanarao as his witnesses. After the complaint was taken on file, Sri Venkatarao and Sri Narayanarao put in their appearance, on behalf of the petitioner. This was objected to by the respondent. The learned Magistrate after going into the question of propriety of these' advocates appearing for the petitioner, has come to the conclusion that they should not be permitted? ' to appear for the petitioner. It is that order that is tried to be revived in this Court.
2. From the facts stated above, it is clear that both Sri Venkatarao and Sri Narayanarao are material witnesses in the defamation case. It is necessary for the respondent-complainant to examine them to prove that the averments found in the written statement and the allegations contained in the reply notice were made on the basis of the instructions given by the petitioner. It will be very difficult for the complainant to prove-the same except through 1 the evidence of these-advocates. Hence it is obvious that the advocates-concerned are important witnesses in the criminal case. It is strange that despite the fact that they are important witnesses in the criminal case, they should have chosen to appear for the petitioner-accused.
3. Sri M. Krishnaswamy, the learned Counsel for the petitioner, strenuously contended before me that the right of a party to engage the lawyer I of the choice is a very valuable right and the I Courts should not interfere with that right lightly, f To support this contention of his, he invited my attention to a decision of the old Mysore High Court in Nimba v. State of Mysore, (S) AIR 1955 Mys 112. As a broad proposition of law, the contention advanced is unexceptionable. No authority is needed in support of that contention. But the real question for decision in this case is whether the Court should permit a person to act as a witness for one party and as counsel for the other, would be highly incongruous for an I advocate to appear in the witness-box at one stage I and as an advocate at another stage. I am sura that no respectable advocate would ever like to fit into that position, and if any Advocate chooses to ignore this rule of professional etiquette, the I Courts will have to protect the profession by refus-1 ing them permission to act in that manner. In-MannarganEmperor AIR 1925 Mad 1153, Devadoss, J. laid down that:
It is against the etiquette of the bar that a counsel should give evidence in the case in which> he is engaged as a counsel and no self-respecting1 counsel would like to conduct a case for the defence after having been called as a witness for the prosecution.
4. This very question came up before a Special Bench of the Madras High Court In re: C. S. Venkatachariar AIR 1942 Mad 691 (SB). That was a case under the Legal Practitioners' Act. The Special Bench laid down.
that a person who is appearing as counsel' should not give evidence as a witness. If in the-course of the proceedings, it is discovered that he is in a position to give evidence and it is desirable that he should do so, the proper course is to retire from the case in his professional capacity.' AI Full Bench of the Madras High Court in we mitter of a pleader AIR 1948 Mad 273 laid down that:Where a pleader prior to the hearing or a trip. of a suit knows that he is' a necessary witness and would be called as a witness in the suit but critiques to act in an active capacity as counsel and gives evidence without cancelling the vakalat, such conduct is improper and deserves condemnation.
I think, neither Sri Venkatarao nor Sri Narayanarao should be anxious to give evidence in this -case. Their attempt at the initial stage to appear for the petitioner was possibly due to some mis-conception. They must be well aware of the fat that if they do appear for the' petitioner, they are likely to be held guilty of professional unipconduct. Under these circumstances, the present petition cannot be allowed and the same is dismissed.