An accused has a fundamental right under Section 303 of the Cr.P.C. to be defended by a counsel of their choice; cross-examination conducted by an advocate not engaged by the accused is invalid and violates this right.

ORDER

1] They are heard and perused the record.

2] This petition has been filed by the petitioner under Section 482 of the Cr.P.C. 1973 /528 of the BNSS, 2023 , against the order dated 12.08.2025, passed by the IV Additional Sessions Judge, Indore in S.T.no.14/2025 arising out of the Crime no. 21/2024, registered at police station-Simrol, Indore whereby the applicant under Section 311 of Cr.P.C.for recalling the prosecution witnesses has been rejected.

3] In brief, the facts of the case are that the petitioner is facing the aforesaid trial in connection with an offence of rape in which, the case is at the stage of recording of the evidence. The cause of action for filing the present petition arose when two witnesses, PW5 Gauri Nath and PW6 Mardan Singh, appeared before the trial court but were not cross-examined by the counsel appointed by the petitioner and their cross-examination was also recorded, but it was recorded through an advocate Chetan Sharma, who was apparently not engaged by the petitioner, and in fact, the said witness was scheduled to be cross-examined after lunch on the said date. However, the witnesses were also cross-examined by the said advocate, Chetan Sharma. And therefore, on the same day, an application was also filed by the petitioner under Section 311 CrPC for recalling the witness, but the application was dismissed by the impugned order dated 12.08.2025 on the ground that when the aforesaid witnesses appeared in the Court, neither the petitioner nor his counsel was present, hence they were cross-examined through Advocate Chetan Sharma.

4] Counsel for the petitioner has submitted that the petitioner has come to be defended by a counsel of his choice, which is also mandatory under Section 303 of the Cr.P.C.,1973. Thus, it is submitted that the petition deserves to be allowed as the advocate not engaged by the petitioner cannot be allowed to cross-examine on his behalf, especially when the petitioner has not even given any instructions to him.

5] Counsel for the respondent/State has submitted that appropriate orders may be passed.

6] On due consideration, and on perusal of the documents filed by the counsel for the petitioner on record, including the impugned order dated 12.08.2025, this Court finds force with the submissions as advanced by the counsel for the petitioner. So far as Section 303 of the Cr.P.C.is concerned, the same reads as under:-

"303. Right of person against whom proceedings are instituted to be defended.—Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice."

7] In view of the same, this Court has no hesitation to set aside the order passed by the trial court allowing an advocate not engaged by the petitioner to cross-examine the witnesses on his behalf, which violates the fundamental right of the petitioner to engage the counsel of his choice.

8] Accordingly, the petition is allowed and the impugned order dated 12.08.2025 is hereby set aside and the application filed by the petitioner under Section 311 of the Cr.P.C. is also hereby allowed. Learned Judge of the trial court is requested to re-call the aforesaid two witnesses and allow the counsel engaged by the petitioner to cross-examine, in accordance with law. It is also directed that the cross-examination conducted by advocate Chetan Sharma shall not be read in abeyance.

9] With the aforesaid, the petition stands allowed and disposed of.