"When an Advocate files appearance, he/she is expected to be present during the trial of the case and discharge his/her functions in the best interest of justice. Otherwise, the Advocate's non-appearance amounts to professional misconduct."

Andhra High Court

G. Sridhar And Anr. vs State Of A.P. on 19 November, 2004

Equivalent citations: 2005 CriLJ 1292

Bench: C Somayajulu

 

 

Para 4 onwards

 

4. The learned counsel who earlier appeared for the petitioners, and chose to remain absent when the case is posted for trial, and who seems to have given up the brief in the middle to the dismay of the petitioners, obviously had failed to keep in view not only Rule 12 of the Rules framed by the Bar Council under 49 (1)(c) of the Advocates Act, 1961, which reads as follows :--

"An Advocate shall not ordinarily withdraw from engagements once accepted, with sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned." but seems to have overlooked the observation of a Division Bench of this Court in P. Satyanarayana v. State of A.P., , reading "When an Advocate files appearance, he/she is expected to be present during the trial of the case and discharge his/her functions in the best interest of justice. Otherwise, the Advocate's non-appearance amounts to professional misconduct."

and also seems to be oblivious of Rule 90 of the Criminal Rules of Practice & Circular Orders, 1990, which says that Sessions work should usually be given preference over civil work and should never be unnecessarily interrupted. I am constrained to assume that the learned counsel for the petitioners in the trial Court was not aware of Rule 9(2) of the Rules dated 5-7-1972 made by this High Court under Section 34(1) of the Advocates Act, 1961, which reads as follows :--

"In criminal cases, the appointment of an advocate, unless otherwise limited, shall be deemed to be in force until determined with the leave of the Court by writing signed by the party or the advocate, as the case may be and filed in Court, or until the party or the advocate dies, or until all the proceedings in the case are ended so far as regards the party".

(Underlining mine) and that the above Rules framed by the Bar Council and the High Court under the Advocates Act, 1961, and the Criminal Rules of Practice, are meant to be followed in practice, but not in breach. In view of the above quoted Rules, it is clear that an Advocate who appears for an accused in a sessions case owes a duty not only to his client, but also to the Court in cooperating with the smooth progress of the trial of the case. His either being absent from Court during the course of trial or withdrawing from the case abruptly, that too without seeking leave of the Court, is highly objectionable and is against all the cannons of professional discipline and conduct because in sessions cases trial schedule would be given in well advance. The parties and their counsel know which witness would be examined on what date, well in advance. So there can be no justifiable reason for the counsel for the accused seeking adjournment for cross-examining the witnesses for prosecution, scheduled to be examined on a particular day. Time and again this Court and the Apex Court held that, witnesses should be examined when they attend Court and are not to be harassed by asking them to attend Court again and again to give evidence, because unlike parties they have no personal interest in the case. They come to assist the Court in deciding the case. They will have their own profession or avocation. Why should they leave their profession or avocation and come to Court again and again to suit the convenience of the counsel who chose to be absent in Court for no justifiable reason when the date for their examination was fixed well in advance? Court and witnesses cannot be put to inconvenience by asking them to change their schedule, to suit the convenience of the counsel for the accused, who, unethically chose to be absent from the Court, without any valid reason. A dutiful counsel would make alternate arrangement for the smooth conduct of the case even in his absence.

5. The learned counsel for petitioners states that the earlier counsel for the petitioners in the trial Court did not appear in the Court because petitioners did not pay the fees demanded by him on that date. I am constrained to observe that that fact cannot be a valid reason or ground for a counsel for the accused being absent from Court in a part-heard sessions case. Settling of fees by the advocate should be done before filing of the memo of appearance for the accused. After filing of the memo of appearance, and when the case became part heard, counsel for accused cannot either vanish or withdraw from the case on the ground that he was not paid the fees, that too without the leave of Court: in view of Rule 9(2) of the Rules framed by this High Court under Section 34(1) of the Advocates Act, 1961 extracted above