( 1 ) THIS revision petition raises an interesting question as to whether an accused can appear as a lawyer for the co-accused.

( 2 ) THE short facts of this petition are as under; The petitioner Gohel Himatsingh Lakhaji is the complainant who has filed a complaint for defamation against six accused. The first four accused were the original accused in another criminal case No. 1798/1962 and at that time the complainant was examined as a witness. In that criminal case accused Nos. 3 and 6 had appeared for those four accused and had cross-examined the complainant. The complainant alleges that those questions which were put to him were defamatory and therefore he has filed the present complaint against the four accused and the two lawyers accused Nos. 5 and 6. Accused No. 5 Patel Rambhai Fakirbhai was the lawyer who had put these questions which are alleged to be defamatory and accused No. 6 Patel Kanubhai Jesangbhai was the other lawyer instructing accused No. 5. During the present complaint these two lawyers accused Nos. 5 and 6 in the present complaint filed their Vakalatnama for accused Nos. 1 2 and 4. The complainant therefore raised an objection that the two accused Nos. 5 and 6 who were themselves accused persons could not appear as lawyers for the co-accused. The learned Judicial Magistrate at Borsad was of the view that it was the right of the accused to select their lawyers and the Court could not interfere unless the party was unwilling to continue them as their lawyers. As no provision of law was cited before the learned Magistrate he had dismissed the application of the complainant. The complainant has therefore filed the present petition against the said order. I am told by Mr. Patel who appeared for the two lawyers-accused No. 5 and 6 that accused No. 5 is now dead and he appears only for accused No. 6 Patel Manubhai Jesangbhai.

( 3 ) WHEN the matter came up for hearing as the matter involved an important question regarding the rights of lawyers I issued a notice to the Bar Council and Mr. Thakore has appeared for the Bar Council.

( 4 ) MR. Shah for the complainant argued that it is a settled principle that there cannot be a mixture of two legal characters. A person who appears before the Court in the capacity as an accused person retains the character of the accused person throughout that proceeding and he cannot take up an altogether different character of a lawyer for the other coaccused. He also argued that the conflict between interest and duty is implicit in such a situation and the accused person would be disqualified from acting as a legal practitioner in that particular cause wherein he himself is concerned. He cannot bring a dispassionate approach to the question being himself personally concerned and he cannot discharge his duty both towards the Court and towards his client. Mr. Thakore also rightly pointed out that the very scheme of the Code is such that such a mixture of these two characters is not contemplated by the Code and is really inconsistent with the scheme of the Code. In this connection Mr. Shah relied upon a decision of the Division Bench of the Madras High Court consisting of Leach C. J. and Gentle J. In Re Subramania Jarma and others reported in A. I. R. 1941 Madras 808. An identical question had arisen in that case. The petitioner who was a member of the English Bar and had been enrolled as an advocate of the Madras High Court was himself the accused person with six other accused and he wanted to appear for the two coaccused. The magistrate considered that it would be improper to allow him to do so and consequently refused permission. The petitioner had filed a revision application. The learned Chief Justice pointed out that the accused were all in custody and had been in custody throughout and what the Court was asked to sanction was to permit accused No. 1 to step from the dock to the place reserved for the counsel and appear as a counsel for the two co-accused. The lear