An advocate has the discretion to decide whether to examine or refuse to examine particular witnesses until the authority conferred upon the advocate is withdrawn, and such discretion is supported by judicial decisions.

1. This case arose on the complaint of a litigant who had engaged the advocate concerned in a criminal case. The litigant had launched a criminal prosecution under S. 323 of the Travancore Penal Code in the Second Class Magistrate's Court at Kottayam. The advocate was engaged by him to conduct the prosecution. His complaint is that two of the principal witnesses whom he had summoned to give evidence in his favour and who were present in court were given up by the advocate without consulting him and without his knowledge and consent. The matter was referred to the Bar Council Tribunal which has submitted its report. On the question as to whether the advocate gave up the witnesses without the knowledge and consent of the complainant, the finding recorded by the Bar Council Tribunal is against the litigant. They have stated that in their opinion the witnesses were given up by the advocate with the knowledge and consent of the litigant and there was no suppression of any facts from him. With regard to the power of giving up witnesses which an advocate can exercise when he is engaged by a litigant, the Bar Council Tribunal has also recorded its opinion based upon judicial decisions, that until the authority conferred upon the advocate to act, plead or appear is withdrawn, he can exercise his discretion in examining or refusing to examine any particular witness. Therefore, what the advocate did in the present case is in the opinion of the Bar Council Tribunal within the scope of the authority conferred upon him by the litigant.

2. The learned Advocate General appears in his official capacity and also on behalf of the Advocates' Association and the President of the Bar Association in Ernakulam also appears. Both of them endorse the views expressed by the Bar Council Tribunal and say that there is no case made out against the advocate.

3. Mr. T. K. Joseph who appears for the Advocate in question invites the attention of the court to certain judicial decisions in England. In the case reported in 157 English Report 1436 at page 1449 this question as the power of a counsel to decide whether a witness should be examined or not was considered and dealt with as follows:

"The conduct and control of the cause are necessarily left to counsel. If a party desires to retain the power of directing counsel how the suit shall be conducted, he must agree with some counsel willing so to bind himself. A counsel is not subject to an action for calling or not calling a particular witness, or for putting or omitting to put a particular question, or for honestly taking a view of the case which may turn out to be quite erroneous. If he were so liable, counsel would perform their duties under the peril of an action by every disappointed and angry client".

A similar view is expressed in the case reported in 20 Queen's Bench Division page 141. In the judgment of Bowen L.J. at page 144 the learned judge says:

"Counsel is clothed by his retainer with complete authority over the suit, the mode of conducting it, and all that is incident to it, and this is understood by the opposite party."

In the present case, we have considered the facts as disclosed in the complaint made by the litigant and although there may be circumstances in which want of bonafides may be attributed to an advocate we are satisfied that there is no justification for levelling such a charge against the advocate against whom proceedings were started in the present case. He had acted in the lawful exercise of the power which is vested in every advocate and we have no hesitation whatsoever in accepting the findings of the Bar Council Tribunal. The advocate is not to be blamed for not examining the two witnesses. He exercised his bonafide discretion in arriving at this decision and we see no reason why any aspersion should be cast upon his conduct. The petition on which action was taken must therefore, be dismissed. Petition dismissed.