ORDER
Bhaskar Rao, J.
1. This revision is filed against the order directing the petitioner’s counsel Sri T.P. Sastry to withdraw his appearance in the case.
2. The facts of the case are that the de facto-complainant filed a report before the police against the petitioner. The petitioner engaged T.P. Sastry, his own brother as his counsel. The de facto-complainant, the petitioner and T.P. Sastry are brothers. The A.P.P. II filed a memo before the Court below seeking a direction to the petitioner-accused to engage some other counsel, as T.P. Sastry cannot defend the petitioner. The Court below allowed the said memo and observed :
“……..During the cross-examination of P.W. 1 some times unpleasant situation is being experienced, whenever a question is put to P.W. 1 by the defence counsel, as that matter was between defence counsel and P.W. 1. Sometimes, P.W. 1 was stating that he brought up the entire family and that “you know every thing” addressing towards defence counsel. This is a peculiar case where at one stage, the defence counsel has stated that the prestige of the family is dragged to the Court. Therefore, embarassment situation is arising often during the cross-examination of P.W. 1 by the defence counsel. The defence counsel cannot be prevented from placing all relevant material before the Court to come to just decision in this case. But, his appearance especially in cross-examination of P.W. 1 is causing embarassment. Therefore, I feel that it would be fair on the part of the defence counsal to withdraw his appearance and he can place the material facts as a defence witness before the Court……….”
3. As per the facts of the case, there is a dispute between the complainant and the accused, and their brother is defending the accused by putting some questions to P.W. 1 (complainant) in his cross-examination. Merely because the defence counsel is the brother of the accused and the complainant, it cannot be said that he is not competent to conduct the proceedings. It is not the case of the prosecution that the said counsel will appear before the Court below as a witness. Section 303 Cr.P.C. reads as follows :
“303. Right of person against whom proceedings are instituted to be defended :-Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.”
The learned counsel for the petitioner also relied upon the judgment in In re. Karuthiah, 1968 Crl.L.J. 690. In that case, the advocate engaged by the accused was cited as witness by the prosecution in the charge-sheet. The Court observed that the prosecution was unable to say as to how the evidence of the advocate would be relevant or material for the purpose of establishing the prosecution case, and held that the advocate could not be prohibited from appearing for the accused.
4. Therefore, I hold that as per Section 303 Cr.P.C, the accused has a right to be defended by a counsel of his own choice and that the said right is also a fundamental right available to the accused under the Constitution of India and that the Court cannot deny the same. The same can be denied only when the said advocate appears as a witness or as a party to the case. Hence, I set aside the order of the Court below and allow this revision case.