A.M. Bhattacharjee, Actg. C.J.
1. Having heard Mr. D.C. Roy, the learned Advocate for the accused-petitioner and the learned Advocate General appearing for the State and having examined the records of the case I am satisfied that this revisional applicantion should be allowed.
2. The petitioner is one of the three accused persons in a Criminal case under Sections 363, 366 and 376, Indian Penal Code in the Court of the Sessions Judge at Gangtok. In Sikkim the Code of Criminal Procedure, 1898, with some modifications, is still the law and in accordance with such modifications, the cases triable by the Court of Session are tried according to the procedure for the trial of warrant cases and therefore, after a charge is framed on the evidence adduced by the prosecution, it is followed by cross-examination of the prosecution witnesses by or on behalf of the accused. In this case, after the close of the prosecution case before charge on 1-9-1979, charges were framed by the learned Sessions Judge on that date and 3-9-1979 was fixed for ascertaining whether the accused persons wanted to cross-examine any, and if so which, of the prosecution witnesses. On that date, however, on the prayer of the prosecution the petitioner, who was released on bail was committed to custody and his bail was cancelled mainly on the ground that the prosecutrix in her deposition before charge implicated him with the offence and the petitioner is in custody since then. The Sessions Judge thereafter fixed 26-10-1979 as the date for cross-examination of the prosecution witnesses.
3. The case of the petitioner is that before he was committed to custody, he contacted a lawyer at Calcutta for the purpose of cross-examination of the prosecutibn witnesses but that due to his sudden confinement in custody, he could not make any further arrangement for bringing the said lawyer from Calcutta. His friends and relations, however, could thereafter engage Mr. D.C. Roy, Advocate of Siliguri and the said Mr. Roy. was to come to Gangtok on 25-10-1979 and to cross-examine the prosecution witnesses on behalf of the petitioner on the next day.
4. On 25-10-1979, Mr. Roy fell ill with an attack of bacillary dysentery with fever and could not attend the Court of the Sessions Judge on 26-10-1979 and the petitioner filed an application for adjournment of the case on the ground of such sudden illness of his lawyer and enclosed with the application a medical certificate dated 25-10-1979 from a registered medical practitioner of Siliguri certifying that Mr. D.C. Roy, Advocate, was suffering from acute bacillary dysentery with high temperature and required absolute rest for seven days. The learned Sessions Judge, however, by the impugned order, rejected the application and proceeded with trial with the result that five prosecution witnesses tendered for cross-examination on that date could not be cross-examined by the petitioner in the absence of his lawyer, though they were cross-examined by the lawyer for the other two accused. The impugned order is reproduced hereinbelow:
Present A. G. and P. P. for the State, and all the accused in custody and Shri B.C. Sharma, Advocate, counsel for the accused Balaram Rana and Amar Sarkar. Accused S.N. Bhattacharjee has filed a petition for adjournment for the reason that he has engaged Shri D.C. Roy, Advocate of Siliguri who was not able to come. It is seen that the accused had been throughout represented by his Counsel Shri M.K.P. Saraf. Advocate and he had cross-examined the PWS on behalf of the accused before charge. Shri Saraf has not retired from this case and the accused himself Is educated person. Today 6 witnesses are present and the prayer of the accused has been vehemently opposed by the prosecution. The P. Ws have come from far off places like Nandugaon, Namchi and Jorethang and adjournment would mean unnecessary harassment to the witnesses and expenditure to the State. Hence the prayer for adjournment is declined. Cross-exami nation of 5 PWs has been recorded. Only one summoned for the next date. The remaining PWs be also summoned for the next date.
To: 16-11-1979 for R. P. E.
Sd/- G.S. Kalra.
5. The learned Sessions Judge has not disbelieved, nor he has any reason to disbelieve, nor it has been disputed by the State before me that Mr. D. C. Roy was engaged by the accused for his defence on that date and that he was ill and unable to come to Gangtok on the date fixed as alleged.
6. As already noted, under the law in force in Sikkim the trial was being conducted according to the procedure for the trial of warrant cases and the date sought to be adjourned was fixed for cross-examination after the charge under Section 256 of the Criminal Procedure Code, 1898. Anyone having any experience in original Criminal trials knows that so far as the accused is concerned, that is a very important, if not the most important, stage for his defence and there can be no doubt that the accused cannot be deprived of that right to cross-examine and such deprivation would vitiate the trial.
7. This right to cross-examine the prosecution witnesses, vested in the accused under Section 256, must mean and include the right to cross-examine through a legal practitioner of his choice in view of Section 340 of the Criminal Procedure Code, which confers on the accused a legal right and Article 22 of the Constitution of India, which confers on the accused a fundamental right, to be defended by a legal practitioner of his choice. Any action, therefore, which purports to deny the accused reasonable opportunity to exercise his right to cross-examine through a lawyer of his choice will not only amount to denial of the right to be defended by a lawyer under Section 340 of the Code and Article 22 of the Constitution, but would amount to denial of his right to cross-examine at all under Section 256 of the Code.
8. The learned Sessions Jundge has observed in the impugned order that there was another lawyer on the record who was defending the petitioner up to the stage of the framing of charge and that the said lawyer had not retired from the case. The said lawyer, as submitted by the petitioner and not disputed by the State, was not present in Court on that date. It may be that as a new senior lawyer was engaged for the purpose of cross-examining the prosecution witnesses on that date, the other lawyer might not think that his presence would any longer be necessary. Be that as it may, assuming that the said lawyer, not having formally retired from the case, was in the wrong in not attending the Court, or even assuming that the said lawyer was present in Court, the accused cannot be deprived of his right to cross-examine through his newly-engaged lawyer of his choice and of the reasonable opportunity of securing the presence of such a lawyer.
9. There has been a new, even though late, awakening among us as to the supreme importance of legal aid and Article 39A of our Constitution, newly inserted in 1976, commands the State to provide such legal aid free to all who may not otherwise be able to secure the same by reason of economic or other disabilities. It has now been realised that justice would be denied and the legal system to administer and promote justice shall fail without proper legal aid and Bhagwati, J. has very recently pointed out in the Supreme Court decision in Hussainara Khatoon v. State of Bihar : 1979CriLJ1052 that if legal services are not provided to an accused 'the trial iteself may run the risk of being vitiated as contravening Article 21'. Therefore, there can be no manner of doubt that providing all reasonable opportunities to the accused to secure legal aid, which obviously includes the right to be defended by a lawyer, is sine qua non for a fair trial and if that is not done, there will be a failure of justice.
10. Mr. D.C. Roy, the learned Advocate for the petitioner, has very strongly relied on the Division Bench decision of the Calcutta High Court in Raj Kishore Rabidas v. State : AIR1969Cal321 wherein it has been observed (at p. 328) that 'adjournment of a sessions trial is serious matter indeed, but absence of the defence lawyer is no less'. I had occasion to go through that decision before and after going through it again I cannot but find myself in respectful agreement with the same and I feel that in all Criminal Cases where the accused may be in the peril of losing his personal liberty and particularly in a case like the present one where the offence charged is punishable with imprisonment for life, the Court, in order to ensure that the trial before it is fair and conducive to justice, is under the obligation to see that the accused has been given reasonable time and opportunities to secure the aid and assistance of a lawyer of his choice, if he has engaged one, or the service of a lawyer at the cost of the State, if and where the State has provided for such a scheme in the discharge of its Constitutional obligation.
11. The other ground on which the learned Sessions Judge refused the adjournment prayed for was that six witnesses for prosecution were present on that date and that the witnesses had come from far off places like Nandugaon, Namchi and Jorethang and that adjournment would mean unnecessary harassment to the witnesses and expenditure to the State. There can be no doubt that, as pointed out by Bose, J., though in a different context, in the Supreme Court decision in Sangram Singh v. Election Tribunal : 2SCR1 that convenience of the witnesses is ordinarily lost sight of and that in adjourning the hearing of cases, justice should be done not only to the parties to the dispute but also to the witnesses, many of whom may not be particularly or personally interested in the dispute and have been compelled to attend Courts by the Court's process. But, as pointed out in Raj Kishore Rabidas's case (at p. 328), the presence of witnesses, by itself, cannot be a sufficient ground to refuse adjournment particularly when such refusal would result in depriving the accused of the service of his lawyer, who has suddenly fallen ill.
12. Mr. Roy has drawn my attention to the order of the learned Sessions Judge dated 20-7-1979 whereby the learned Sessions Judge allowed adjournment of the case on the ground of the absence of the lawyer for the prosecution in spite of the presence of as many as five witnesses in Court on that date. Even though the prosecution may not have a fundamental right guaranteed by the Constitution to have its case conducted by a lawyer, it has a legal right to that effect since Section 270, Criminal Procedure Code commands that 'in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor'. Justice, as is well-known, must be done both to the prosecution as well as to the accused and, as Bose, J. pointed out in Sangram Singh's case, to the witnesses also and I have no reason to think that this adjournment was wrongly granted, if the Sessions Judge felt that it was necessary in the interest of justice to allow the prosecution to have the case conducted through the lawyer of its choice. But it is difficult to understand as to why the learned Sessions Judge, who could show such consideration to the prosecution, would fail to show similar consideration to the accused under similar circumstances and thus would give rise to a scope for the criticism that he had been soft to the prosecution.
13. In Rinzing Choda v. State 1978 Cri LJ 1270, this Court had occasion to examine the scope of the revisional jurisdiction vested in this Court under the Criminal Procedure Code and it has been held in that case by this Court, after referring to and relying on a long catena of Supreme Court decisions, that the Criminal revisional jurisdiction is not to be exercised for the correction of mere errors of law or procedure, the anxiety and the purpose of the revisional Courts always being to correct injustice and not mere illegalities and irregularities. I have, however, no doubt that this revisional application should be allowed even according to the tests laid down by this Court in Rinzing Choda's case as I am stisfled that by refusing to grant the adjournment prayed for by the petitioner by his impugned order, the learned Sessions Judge has deprived the petitioner of his right to be defended by a lawyer of his choice and his right to have reasonable opportunities to secure the presence of his lawyer and thereby has deprived him of his right to cross-examine under Section 256 of the Criminal Procedure Code. This has, as it can not but have, resulted in a flagrant miscarriage of justice.
14. 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 deprecable when it amounts to rash speed and however good speedy disposal of a case may be, it can never be desired if it is achieved at the cost of established notions of justice, which cannot always be, administered by the hands of the clock.
15. In the result the revisional application succeeds. As the learned Sessions Judge was wrong in refusing adjournment to the petitioner in order to enable him to cross-examine the prosecution witnesses through the lawyer of his choice, I direct that the learned Sessions Judge shall recall all the five witnesses who were tendered for cross-examination on 26-10-1979 and would give to the petitioner opportunity to cross-examine those five witnesses by and through his lawyer on the next date and then proceed with the case according to law. Let the records go down at once.