ORDER
S.L. Kochar, J.
1. This revision has been directed against the order dated 24-5-2004 passed by the learned XI Addl. Sessions Judge, Indore in Sessions Trial No. 407/2003 thereby dismissing an application under Section 311 of the Code of Criminal Procedure filed by the applicants for recalling two witnesses for the prosecution named Sunil Kushwaha (P.W. 6) and Gajendrasingh (P.W. 10), for cross-examination.
2. Learned Counsel for the applicants has vehemently submitted that the applicants arc facing murder trial and both the witnesses have not been cross-examined by their Advocate Shri Ashok Shukla. Therefore, the applicants have filed an application under Section 311 of the Cr.PC for recalling the aforesaid two witnesses for cross-examination, but the same has been dismissed without assigning any valid reason. On 6-7-2004, this Court had directed the learned Counsel for the applicants to file the certified copies of the orders right from 26-2-2004 and the same have been filed only on 19-7-2004 by the Counsel for the applicants. This Court has gone through the impugned order dated 24-5-2004 and found that the reasons assigned by the learned Trial Court for dismissal of the application do exist in the record. The applicants were defended right from the date of the examination of prosecution witnesses, i.e., 26-2-2004. On that date, they filed Vakalatnama. Thereafter, the trial was fixed also for 27-2-2004. On this date, Sunil Kushwaha (P.W. 6) and Jugal Kishore (P.W. 7) were examined by the prosecution, but Advocate Shri Sharma, Counsel for the applicants submitted an application seeking adjournment on the ground that Sr. Advocate Shri Ashok Shukla was recently engaged and was unable to appear on that date before that Court. Learned Trial Court accepted the prayer of adjournment and bound-down both the witnesses for their cross-examination by Advocate Shri Ashok Shukla on 10-3-2004 though Advocate Shri Ashok Shukla already appeared on 26-2-2004 and cross-examined four witnesses. Therefore, the ground mentioned by Advocate Shri Sharma in the application that Advocate Shri Ashok Shukla was recently engaged, docs not find support from the material on record.
3. On 10-3-2004, the witnesses Sunil Kushwaha and Jugal Kishore, (P.W. 6) and P.W. 7) respectively, Ratansingh Chauhan and Shailesh Gujar were present. On this date Gajendra Singh (P.W. 10) was also examined by the prosecution. Again on this date, the Counsel for the applicants had filed an application seeking adjournment on the ground that Sr. Advocate Shri Ashok Shukla could not appear because he is suffering from viral-infection. This application was also allowed by the learned Trial Court and bound down all the five witnesses for their appearance on 12-3-2004, specifically directing them to remain present for their cross-examination before tea-break. On 12-3-2004, all the witnesses were present, but Advocate Shri Ashok Shukla cross- examined only Shailesh Gujar (P.W. 5), Jugal Kishore (P.W. 7) and Ratansingh Chauhan (P.W. 9) and sought adjournment for cross-examination of Sunil Kushwaha (P.W. 6) and Gajendra Singh (P.W. 10) on the ground of his sickness. Again the Trial Court accepted the prayer of the Counsel and bound down both these witnesses for their appearance on 26-4-2004. The Court also issued summons for other witnesses in the case. On 26-4-2004, both the witnesses Sunil Kushwaha (P.W. 6) and Gajendra Singh (P.W. 10) were present, but they were not cross-examined by Advocate Shri Ashok Shukla and his junior Advocate Shri M.S. Sharma filed an application seeking adjournment.
4. On 26-4-2004, Harinath Pandey and Bhagwandas, father of accused Manish Pandey and Vishal Yadav respectively had also filed an application seeking adjournment for cross-examination of both the aforesaid witnesses on the ground that because of their poor financial condition, they could not arrange to deposit the fees of Shri Ashok Shukla, Advocate and only because of that, they arc unable to cross-examine the witnesses who were present on this date. They again sought adjournment.
5. On this date, the learned Additional Public Prosecutor filed reply to the application for adjournment filed on behalf of the accused persons, supported by an affidavit of Sunil Kushwaha (P.W. 6) saying on oath that this witness Sunil Kushwaha was pressurized to change his statement in the Court and ordinarily on everyday, someone is visiting his house and delivering threats to him and his family members. Thus, he himself and his family members are put in fear. He also contended that if the case is adjourned for cross-examination, any untoward incident may occur. The learned Trial Court passed the detailed order on this date, i.e., 26-4-2004 and asked the fathers of the accused persons as mentioned above to provide Counsel from Legal Aid or a pauper Counsel or a Counsel at the state-cost to defend the accused persons if they are not able to manage to pay the fees to their engaged Counsel. But, both of them refused to have any Counsel at the State-cost. The learned Trial Court, on this date, granted last chance to the defence to cross-examine both the witnesses Sunil Kushwaha (P.W. 6) and Gajendra Singh (P.W. 10). The learned Trial Court also directed the Superintendent of Police, Indore to give protection to the witness Sunil Kushwaha (P.W. 6).
6. Again on 27-4-2004, both the witnesses were present and fathers of the accused person submitted an application through their Counsel Shri M.S. Sharma for adjournment. In that application, they submitted that upto evening, they shall be in a position to manage for the fees of Sr. Advocate and shall pay the same. They had also submitted that they will file the reply in regard to tampering with or delivering threats to Sunil Kushwaha (P.W. 6) prepared by Advocate Shri Ashok Shukla. On this date, i.e., 27-4-2004, the learned Trial Court passed the detailed order reproducing all the previous events and dismissed the application and also discharged both the aforesaid witnesses closing the right of the accused persons to cross-examine these witnesses.
7. This Court is dealing with the matter in the light of observations made in State of U.P. v. Shambhu Nath Singh and Ors., (2001) 4 SCC 667, Skipper Tower (P) Ltd. v. Skipper Bhawan Flat Buyer’s Assn., (2002) 10 SCC 116 and Mohd. Khalul v. State of W.B., (2002) 7 SCC 334.
8. Against the order dated 27-4-2004, no revision was filed before the Superior Court, i.e., the High Court and on 24-5-2004, the application under Section 311 of the Cr.PC has been filed for recalling of Sunil Kushwaha (P.W. 6) and Gajendra Singh (P.W. 10), stating the grounds in the application that on previous dates, the accused persons could not manage for payment of fees of Shri Ashok Shukla, Advocate because of which, they could not get these witnesses examined by Advocate Shri Shukla. Therefore, these two witnesses may be recalled for cross- examination. This application has been dismissed by the impugned order wherein the learned Trial Court has assigned the foregoing facts and held that it did not find any ground for changing its order dated 24-5-2004 for allowing the application under Section 311 of the Cr.PC when the right of cross-examination was closed by it and sufficient opportunities were given to-the accused persons to cross-examine the witnesses. The witnesses were also harassed for calling on every adjourned date and the witness Sunil Kushwaha (P.W. 6) also filed an application supported by an affidavit regarding delivery of threats. Even on 24-5-2004, one more application was filed by Advocate Shri M.S. Sharma for deferring the cross-examination of Inspector Baldeo Singh Thakur (P.W. 16) on the ground that Advocate Shri Ashok Shukla had gone to Dewas and could not cross-examine this witness. The learned Trial Court accepted this application also for cross-examination of Baldeo Singh Thakur (P.W. 16) who was examined on that very date by the prosecution and rejected the application under Section 311, Cr.PC.
9. The aforesaid events took place before the learned Trial Court which are clearly indicating that allowing this revision against the impugned order, would be nothing but to give protection to the accused persons to behave before the Trial Court as per their own choice and desire and to harass the witnesses so that the witnesses may succumb to their desire. The learned Trial Court has given sufficient opportunities and only thereafter close the right of cross-examination by the Counsel of the choice of the accused persons. The law does give right to the accused persons to defend themselves by the Advocate of their choice but does not give such latitude. Once the Counsel is engaged, it is the duty of the Advocate to appear on the dates of hearing and if he remains absent, he has to assign reasonable and valid reasons. The payment of fees is a matter between the party and the Counsel. It should not come in the way of the Court to proceed with the trial. But, in the present case, the learned Trial Court even on that ground gave time to cross-examine the witnesses through the Advocate of their choice.
10. Learned Trial Court has also given option to the accused persons to provide Advocate at the State-cost, but, they denied to avail that facility and filed an application under Section 311, Cr.PC almost after about one month without challenging the earlier order dated 27-4-2004 whereby the learned Trial Court closed the right of the accused persons regarding cross-examination.
11. The Supreme Court in the case of Mohd. Khalid (supra) has made a serious observation about adjournment of the case for cross-examination by the defence. In Para 54, it has been held that:-
“Before parting with the case, we may point out that the Designated Court deferred the cross-examination of the witnesses for a long time. That is a feature which is being noticed in many cases. Unnecessary adjournments give a scope for a grievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in-chief is over, unless compelling reasons arc there, the Trial Court should not adjourn the matter on the mere asking. These aspects were highlighted by this Court in State of U.P, v. Shambhu Nath Singh and N.G. Dastane v. Shrikant Shivde. In Shambhu Nath Singh case, this Court deprecated the practice of Courts adjourning cases without examination of witnesses when they are in attendance with the following observations:-
“9. We make it abundantly clear that if a witness is present in Court he must be examined on that day. The Court must know that most of the witnesses could attend the Court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the Court is generally a poor solace for the financial loss incurred by him. It is a said plight in the Trial Courts that witnesses who are called through summons or other processes stand at a doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by every one provided the presiding officer concerned has a commitment towards duty. No sadistic pleasure, in seeing how other persons summoned by him as witnesses are standard on account of the dimension of his judicial powers, can be a persuading factor for granting such adjournments lavishly, that too in a casual manner”.”
Also see : State of UP., (2001) 4 SCC 667 (supra).
12. In the case of Skipper Tower (P) Ltd., (supra), it has been observed:-
“Practice and Procedure.-Adjournment- Sought by a Counsel on the ground that he is not in a position to proceed with the matter inasmuch as he has been engaged recently in the case- Held, not permissible because if a Counsel accepts the engagement knowing fully well that the matter is already on board, then he must be prepared to proceed with the matter- Civil Procedure Code, 1908, Section 148 and Order 17 Rule 1- Criminal Procedure Code, 1973, Sections 309 and 314(3).”
13. Looking to the above mentioned authorities of the Supreme Court, the learned Trial Court should have not given such a latitude to the defence for cross-examination. This Court is of the opinion that the conduct of the applicants was not such which may attract the discretionary power of the Court under Section 311 of the Code of Criminal Procedure for recalling the prosecution witnesses for cross-examination in favour of the applicant/accused persons.
14. As a result of the discussion as aforesaid and having regard to the legal and factual position emerging in the case, this revision fails and is hereby dismissed.