The accused's engagement of counsel does not automatically deprive him of the right to cross-examine a witness.

JUDGMENT :

S.N. Phukan, C.J. - In this writ application Order No. 19 dated 7.12.1998 passed by the learned Chief Judicial Magistrate-cwm- Assistant Sessions Judge, Bhubaneswar in S.T.Case No. 5 of 1998 is under challenge.

2. Factual position is almost undisputed and runs as follows :

Petitioner is facing trial for alleged commission of offences punishable Under Sections 354, 376/511 of the Indian Penal Code, 1860 (in short, 'IPC'). On 7.12.1998 P.W. 5 was examined in chief by the Public Prosecutor, CBI before lunch interval. Shri P.C.Kanungo, Advocate was the conducting lawyer for the petitioner. He filed a memorandum indicating that he was not feeling well and therefore, the accused- petitioner, who is an Advocate, may be permitted to cross-examine P.W. 5. A memorandum to that effect signed by the Advocate was filed. The prayer was rejected by the learned C.J.M.-cwm-Assistant Sessions Judge on the ground that the accused-petitioner had engaged more than five Advocates to conduct his case and none of them had withdrawn the power till that time. In the circumstances, the accused was not to be permitted to cross-examine the witness where the Advocates engaged by him still held power. The prayer was, therefore, rejected. However, a memo, was filed stating that the defence advocate will cross-examine the P.Ws. reserving their right to move this Court. It was observed by the Court that it had nothing to say in the matter, and any defence advocate who holds power for the accused may cross- examine the witness. Accordingly, P.W. 5 was examined, cross-examined and discharged. The order refusing petitioner's prayer to cross-examine P.W. 5 by him is challenged in this application.

3. Stand of the petitioner in the application is that the scheme of the Code of Criminal Procedure, 1973 (in short, the 'Code') and the Constitution of India, 1950 (in short, the 'Constitution') confers a right of cross-examining a witness by the accused in respect of evidence given in examination-in-chief. This is part of the statutory and fundamental right guaranteed under Articles 21 and 22 of the Constitution. Merely because the accused has engaged counsel that does not deprive him of the right to cross-examine a witness if he chooses to do so.

4. A counter affidavit has been filed by the CBI taking the stand that the application has become infructuous as P.W. 5 has been examined and cross-examined by the defence Advocate on 7.12.1998. It is further stated that the allegations pertain to procedural aspect of trial before a Court of Session which could have been agitated by availing remedy u/s 482 of the Code. Large number of Senior Advocates have appeared for the accused and at no point of time the accused-petitioner wanted to conduct the case himself and as the Advocates appearing for the accused held the power he could not be permitted to cross- examine the witness himself. Reference is made to Section 303 of the Code to show that it completely takes away the right of an accused to conduct the proceedings himself.

5. It is stated by the learned counsel for petitioner that had the petitioner got any ill motive he could have disengaged all the lawyers and conducted the cross-examination himself and later on again engaged the counsel. Such unfair practice was not adopted by the petitioner with a view to uphold the dignity of law. We are not expressing any opinion on this submission. However, as rightly submitted by Mr. Mohanty, learned counsel for CBI, P.W. 5 has been examined, cross- examined and discharged. The learned counsel for petitioner pointed out that the cross-examination was done with most difficulty as evident from the memorandum-Annexure- 3 itself. If further cross-examination of P.W. 5 is necessary the Court can take resort to Section 311 of the Code. The learned counsel for petitioner stated that an appropriate application shall be filed in that regard. If it is done, the trial Court shall pass appropriate orders in accordance with law.

The writ app