An accused has the right to be defended by a Counsel of his choice in a criminal proceeding instituted against him.

LINGARAJA RATH, J.

( 1 ) THE petitioner was convicted u/s. 394/457/325, IPC, and sentenced to three years' R. I. on each count and a fine of Rs. 1000/- with a direction for the sentences to run concurrently. In appeal he was acquitted of the charge u/s 394 IPC and the conviction u/s. 457 IPC was converted to one under Section 451, while maintaining the conviction u/s. 325 IPC and the sentence was also modified to the total remission of the fine and two years' R. I. u/s. 325 IPC and one year R. I. u/s 451 IPC with the sentences directed to run concurrently.

( 2 ) THE allegation for which the petitioner stood convicted was of his having attempted to snatch away the gold necklace from the neck of the wife of the Judicial Magistrate, First Class, Jagatsinghpur on the might of 9-9-82 who was then alone in the house and while she tried to prevent the petitioner, he is alleged to have given a fist blow on her face resulting in loss of a tooth on the upper jaw and sustaining bleeding injury thereby. The facts having been found to be true by both the courts below, the conviction as aforesaid was made.

( 3 ) MR. A Passayat, learned counsel appearing for the petitioner, has advanced the sole contention that not only the trial was conducted with great zeal and haste but also on denial of opportunity to the petitioner to defend himself. From the records it appears that after the charge-sheet was submitted on 6-10-82, and the police papers supplied to the petitioner on 8-11-82, the trial was taken up on 23-11,82 on which day Mr. N. C. Patnaik, counsel appearing for the petitioner filed a petition for the stay of the proceeding on the ground that a transfer petition had been filed before the Sessions Judge to transfer the case from the file of the learned Magistrate but that the same having been rejected, it was intended to file a petition before this Court and that to enable the petitioner for the purpose, the case should be stayed. Though such a petition was filed, yet Mr. Patnaik did not appear and copy of the said petition had also not been served on the A. P. P. The petition having not been moved and the A. P. P. having also objected to the petition for stay, the learned Magistrate rejected it being of the view that since there was no order of stay from this Court and the witnesses were present, interest of justice demanded that the proceeding should not be stayed. Thereafter he took up the case for trial and examined P. Ws. 1 to 7 and marked some exhibits as also some M. Os. and the case was adjourned to 26-11-82 for further examination of the witnesses on the request of the A. P. P. On 26-11-82 a fresh vakalatnama in favour of some other advocates as also Mr. N. C. Patnaik was filed on behalf of the petitioner with a petition to recall the witnesses examined on the previous date, for cross-examination. The prosecution evidence was closed on that day with the examination of P. Ws. 8 to 12 and the petition for recalling the witnesses was also rejected holding that opportunity had been granted to the petitioner on the previous date to cross-examine the witnesses, but he had declined the same and that if his request was acceded to, there would be no end to the litigation and that since there were female witnesses, it would not serve ends of justice to recall the witnesses again for cross-examination. Arguments were heard in the case on 2-12-82 on which day a Memo was filed by the Advocate Sri G. C. Kanungo withdrawing from defence and no defence counsel also appeared thereafter. Nevertheless arguments were heard, the case was closed and judgement was delivered on 3-12-82.

( 4 ) FROM the narration of facts as above, there is little doubt that the petitioner did not have adequate opportunity to defend himself against the charge. Section 303 Cr. P. C. gives a right to an accused to be defended by a Counsel of his choice in a criminal proceeding instituted against him. Doubtless the petitioner was represented by Mr. Patnaik on 23-11-82 but