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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. KUNHIKRISHNAN, J.
Vishnu, S/o. Suresh @ Babu & Ors. - Petitioners
Versus
State of Kerala, Represented by Public Prosecutor, High Court of Kerala - Respondent
Crl.M.C.No.9209 of 2023
Decided On : 03-11-2023
Fact of the Case:
The accused filed a case challenging the dismissal of their application to reschedule a trial based on the convenience of their lawyer.Finding of the Court:
The court found that the trial court should consider the convenience of both the prosecution and the accused when scheduling trial dates. It emphasized that unilateral decisions from the court alone are not permissible.Issues:
Whether the convenience of lawyers should be considered by the trial court when scheduling trial dates.Ratio Decidendi:
Rule 77A(2) of the Criminal Rules of Practice, Kerala, 1982 states that both prosecution and accused have a role in fixing consecutive dates for recording evidence. The court emphasized that genuine submissions from lawyers regarding trial dates should be considered by the court.Final Decision:
The impugned order was set aside, and the lower court was directed to reconsider the matter in accordance with law.ORDER :
This Criminal Miscellaneous Case is filed challenging Annexure-2 order, by which, an application filed by the petitioners/accused to reschedule S.C.No.474/2018 of the Additional Sessions Court (Adhoc-II), Palakkad was dismissed by the learned Sessions Judge.
2. The learned Sessions Judge dismissed the application stating that, this Court in Official Memorandum no.HCKL/1701/2023-E6(B) dated 07.08.2023 directed to dispose all murder cases immediately. That does not mean that the convenience of the lawyers need not be looked into by the trial court. These are fundamental things to be considered by the trial court at the time when the case is posted for trial. The intention of this Court is only to see that the old murder cases are to be disposed of immediately. When a lawyer coming before the court saying that he is already engaged in some other sessions case and he is ready to conduct the trial on a particular date, the Court should hear that submission in a pragmatic manner. Rule 77A(2) of the Criminal Rules of Practice, Kerala, 1982 says that, after the commencement and immediately after framing the charge, the Court shall hear the prosecution and the accused to ascertain and fix consecutive dates for recording evidence. This shows that the prosecution and the accused are having a role while fixing the date of trial. There cannot be a unilateral decision from the Court alone while scheduling trial. Accused has got a right to choose his lawyer for conducting the trial and hence the convenience of the lawyer also should be taken care of by the Court. But, the submission of the lawyer should be genuine. Whether the submission of a lawyer for getting a date for trial is genuine or not is to be decided by the Court at the stage of scheduling the trial. If the submission of the lawyer of the accused or prosecution is genuine, the Court should be magnanimous to accept it and schedule the trial as requested by them after considering the convenience of the Court also. In this case, the submission of the counsel is genuine. Hence, I am of the considered opinion that the impugned order can be set aside and there can be a direction to the learned Judge to reconsider the matter in accordance to law.
Therefore this Crl.M.C is disposed of with the following directions :
(b) The Additional Sessions Court-II, Palakkad is directed to reconsider Crl.M.P.No.4928/2023 in S.C.No.474/2018 in accordance to law.
The court established that both prosecution and defense must be heard before trial scheduling, ensuring the accused's right to a fair trial and legal representation.
The right to a speedy trial under Article 21 mandates that trials should not be unduly delayed, balancing procedural fairness with judicial efficiency.
A fair trial requires all essential evidence, necessitating the rescheduling of proceedings until key reports are obtained.
The court reinforces the necessity of compassionate considerations in legal proceedings, allowing adjournments in light of genuine emergencies.
Accused have a right to represent themselves through a pleader but cannot cross-examine witnesses using non-advocates without court permission, ensuring procedural integrity.
The main legal point established in the judgment is the limitation on seeking adjournments, especially on the ground of illness of the lawyer, and the need for expeditious disposal of cases.
A petitioner cannot delay trial proceedings without merit; non-pressed applications render requests for deferment infructuous.
The court emphasized the exceptional circumstances under which constitutional courts can issue time-bound directives for trial completion.
Constitutional courts may only set time-bound disposal schedules in exceptional circumstances; normally, this is left to the discretion of the trial courts.
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