High Court of MP said that, the Advocates would be answerable for the consequences suffered by the clients if the non-appearance was solely on the ground of a strike call..
From Para 6,
6. From the impugned order, it is clear that on 28.12.2021 Ranjana Chauhan (PW-18) had appeared and her examination-in-chief was recorded and in spite of various judgments passed by the Supreme Court as well as High Court, by which strike by the lawyers has been declared to be illegal, the lawyers were abstaining from work. Thereafter, at the request of the applicant, cross-examination of Ranjana Chauhan (PW-18) was deferred for the next date and on the next date, i.e., 29.12.2021 counsel for the applicant did not cross-examine her. The case was then adjourned to 11.01.2022 and on the said date also, counsel for the applicant did not cross-examine Ranjana Chauhan (PW-18). Thus, it is clear that not only, the lawyers were abstaining from work contrary to the judgment passed by the Supreme Court in the case of Ex-Capt. Harish Uppal Vs. Union of India and another reported in (2003) 2 SCC 45, but the counsel for the applicant was out and out to harass the prosecution witness Ranjana Chauhan (PW-18) as he did not cross-examine her in spite of an opportunity given by the Trial Court on 29.12.2021 and 11.01.2022.
From Para 10,
10. Thus, it is clear that the Advocates would be answerable for the consequences suffered by the clients if the non-appearance was solely on the ground of a strike call. On 28.12.2021 the prosecution witness was not cross-examined because the lawyers were abstaining from work. The Bar cannot justify its strike merely by saying that they are not on strike, but they are abstaining from work. Strike and abstaining from work is one and the same thing. In spite of the fact that the lawyers were on illegal strike by calling it as abstaining from work, the Trial Court fixed the case for the next date, i.e., 29.12.2021 for cross-examination of prosecution witness Ranjana Chauhan (PW-18). However, in spite of that, the counsel for the applicant did not cross-examine her. Thereafter, the case was again fixed for 11.01.2022 and on the said date also, counsel for the applicant did not cross-examine her.
From Para 11 and 12,
11. It is submitted by the counsel for the applicant that since the trial involves serious disputed questions of facts and law, therefore, counsel for the applicant was required to make preparation for cross-examining the prosecution witness and, therefore, he could not cross-examine her on 11.01.2022 and further it was already 5:15 PM.
12. The submission made by the counsel for the applicant is not acceptable. The Trial is pending since 08.02.2017, i.e., the date on which the charges were framed. Even after a long five years of pendency of trial, if the counsel for the applicant has not prepared the case, then only he is to be blamed.
13. So far as the contention of the counsel for the applicant that since it was already 5:15 PM, therefore, he did not cross-examine her is concerned, it is clear from the order sheet of the Trial Court that the witness had appeared at 3:00 PM but pass over was sought by the counsel for the applicant. If the Court had accommodated the counsel by passing over the matter, then the counsel cannot make a complaint that since working hours were over, therefore, he had a right to refuse to cross-examine the witness.
From Para 14,
14. Under these circumstances, this Court is unable to accept the contention of the counsel for the applicant that the counsel is ready to pay the compensation as well as expenses to the witness out of his own pocket. If the applicant has engaged a lawyer who is not serious towards his profession, then the applicant has a remedy to approach the Bar Council and if the counsel for the applicant was working as per the instructions of the applicant, then the applicant cannot run away from his liability of not cross-examining the prosecution witness Ranjana Chauhan on 28.12.2021, 29.12.2021 and 11.01.2022.
From Para 16,
Vipin Rajput Vs State of MP on 13 Apr 202216. However, liberty is granted to the applicant that in case, if his counsel had acted contrary to his instructions and did not cross-examine the witness in spite of his clear instructions, then he shall have a remedy of filing a civil suit for claiming compensation. He shall also have a remedy to approach the Bar Council against his local counsel for abstaining from work in spite of the law laid down by the Supreme Court in the case of Ex-Capt. Harish Uppal (supra).
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