|CORAM:||Adarsh Kumar Goel J, Jagdish Singh Khehar J.|
|SECTION(S):||Cr. P. C|
|DATE:||September 10, 2015 (Date of pronouncement)|
|DATE:||September 14, 2015 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|Law Commission and the Bar Council of India should consider whether Advocates should be tested for fitness and competence to argue matters|
(Image Credit: Hindustan Times)
In the Uber rape trial case, the accused claimed that his counsel representing him earlier was incompetent, being a novice and that he is entitled to recall all the prosecution witnesses now that he has engaged a new counsel. The trial court rejected the plea on the ground that the competence of a Lawyer is subjective and the date of his enrolment with the Bar Council can certainly not be said to be a yardstick to measure his competence. It was also stated that the submission that the earlier advocate was not competent to appear as an Advocate inasmuch as he had not even undergone screening test as required by Bar Council of Delhi Rules and was not issued practice certificate was not fortified by any record. However, the High Court reversed the trial court and directed re-examination of some of the witnesses. On appeal by the State to the Supreme Court HELD reversing the High Court:
(i) While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. Witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.
(ii) The interest of justice may suffer if the counsel conducting the trial is physically or mentally unfit on account of any disability. The interest of the society is paramount and instead of trials being conducted again on account of unfitness of the counsel, reform may appear to be necessary so that such a situation does not arise. Perhaps time has come to review the Advocates Act and the relevant Rules to examine the continued fitness of an advocate to conduct a criminal trial on account of advanced age or other mental or physical infirmity, to avoid grievance that an Advocate who conducted trial was unfit or incompetent. This is an aspect which needs to be looked into by the concerned authorities including the Law Commission and the Bar Council of India.