IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 Crl.MC.No. 3425 of 2010() -------------------------------------- SC.80/2010 of ADDL.SESSIONS COURT (SPECIAL COURT FOR NDPS ACT CASES) THODUPUZHA .................... (CRIME O.29/2008 OF IDUKKI POLICE STATION, IDUKKI DISTRICT) ... PETITIONER(S): ACCUSED: ---------------------------------------- 1. JAIN, S/O.RAJENDRAN, AGED 42 YEARS, PALLATH HOUSE, CHITTATTUKARA, VADAKKEKARA P.O., NORTH PARAVUR. 2. LIJU, S/O.GOPALAKRISHNAN, AGED 35 YEARS, KUZHUPPILLY HOUSE, CHERIAPPALLAMTHURUTH, NORTH PARAVUR. 3. PONNAPPAN, AGED 41 YEARS, S/O.RAMACHANDRAN, CHERUMANATHARA HOUSE, PARAYAD, NORTH PARAVUR. 4. JOSEN THOMAS, AGED 40 YEARS, S/O.THOMAS, KAITHAMATTATHIL HOUSE, POOVAKKULAM, KARAMALA P.O.,KOTTAYAM 5. VINOD, AGED 29 YEARS, S/O.VIJAYKUMARAN NAIR, PUTHUVAL PUTHENVEEDU, BALAGRAM P.O., NIRMALAPURAM,IDUKKI 6. SURESH P.K.,AGED 28 YEARS, S/O.KUNJUMON, PUTHENPURACKAL HOUSE ,KUMILI P.O., AMARAVATHI,IDUKKI. 7. RATHEESH, AGED 27 YEARS, S/O.GOVINDAN, PUTHENPURACKAL HOUSE, ATTAPPALAM P.O.,KUMILY, IDUKKI. Kss ..2/- ..2.... CRMC.NO.3425/2010 8. SABY THAKAPPAN,AGED 37 YERS, S/O.THANKAPPAN, MUDITHANAM, SANYASI ODA P.O.,ATHIYARPURAM, IDUKKI. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANT: --------------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.(CRIME NO.290/2008 OF IDUKKI POLICE STATION) BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3425 OF 2010 --------------------------------------------- Dated 31st August, 2010 O R D E R Petitioners are the accused in S.C.80/2010, being tried for the offences under Sections 364 A, 120B, 468, 471, 506 (1) and 201 read with Section 34 of Indian Penal Code by Additional Sessions Judge, N.D.P.S., Thodupuzha. Case of the petitioners is that the case was posted for trial to 16/8/2010 and counsel without notice to the petitioners relinquished the vakalath and submitted a memo before the court while petitioners were in the box, they could not follow the proceedings and the learned Sessions Judge after accepting the memo relinquishing the vakalath, directed the Public Prosecutor to conduct Crmc 3425/10 2 chief examination of Cws.1 to 3 and after recording the chief examination petitioners were directed to cross examine them and without granting opportunity to engage another lawyer, the case was adjourned to 17/8/2010. It is contended that on that day also opportunity was not granted to the petitioners to engage a counsel and the court recorded no cross examination and there are altogether 35 witnesses for the prosecution and the petitioners will not get justice, if the trial is proceeded without the aid of a defence counsel and therefore, learned Additional Sessions Judge, N.D.P.S. Thodupuzha is to be directed to adjourn the proceedings for a period of two months to enable the petitioners to appoint a counsel of their choice. 2. While admitting the petition and granting interim stay a report was called Crmc 3425/10 3 for from the learned Additional Sessions Judge whether the counsel relinquished vakalath and whether the case is continued while the accused were not defended by a lawyer. A report was submitted by the learned Sessions Judge to the effect that the case was posted for examination of Cws.1 to 3 to 16/8/2010 and though it was represented that there was an agreement for settlement, CW1 denied it and Cws.1 and 2 are students studying in B.Tech course and CW3 is the father of CW2 and all of a sudden, their counsel who was appearing for all the accused went out of the court hall and submitted a memo relinquishing his vakalath. It is reported that as Cws.1 and 2 were students and they may miss the classes and they insisted to proceed with the case and so chief examination of Pws.1 to 3 was recorded and the witnesses were bound over to the next day Crmc 3425/10 4 to enable the petitioners to engage another counsel and cross examine the accused. It is reported that on 17/8/2010 though petitioners 1 to 4 engaged Adv.M.Hallaj, other petitioners did not engage any counsel and all of them sought adjournment and it was not granted and hence it is recorded that there is no cross examination. PW4 was also examined on that day. He was also not cross examined. According to the learned Sessions Judge, though the case was posted to 17/8/2010, he made it clear that if application is filed to re-call the witnesses, it will be granted. 3. Learned counsel appearing for the petitioners was heard. 4. Learned counsel submitted that in a Sessions case where there are 35 witnesses to be examined on the side of the prosecution, without affording opportunity to the accused to Crmc 3425/10 5 engage a counsel and that too granting time to the counsel to get ready there cannot be an effective defence and therefore, learned Sessions Judge was not justified in posting the case to 17/8/2010 and recording no cross examination on that day. In such circumstances, there should be a direction to the learned Sessions Judge. 5. Report of the learned Sessions Judge reveals that when the case was posted for recording the evidence of Cws.1 to 3, the counsel who was appearing for all the accused relinquished his vakalath by filing a memo. Report of the learned Sessions Judge itself reveals that the counsel relinquished the vakalath, while the court was taking up the case and it was not with the consent of the accused. Learned Sessions Judge in such circumstances, was not justified in recording Crmc 3425/10 6 the evidence of Pws.1 to 3 and posting the case to the very next day without affording opportunity to the accused to engage a counsel, so as to defend the case properly. It is also unfortunate that when the case was posted for the next day, in spite of the application filed to grant adjournment to engage a counsel so as to defend the case, learned Sessions Judge recorded no cross examination for Pws.1 to 3 and examined PW4 and recorded no cross examination. Learned Sessions Judge should have granted opportunity to the accused to engage a counsel. If eagerness of the learned Sessions Judge was to protect the interest of Cws.1 and 2, evidence should not have been recorded on that day and thereafter posted the case again to the next day, so as to cause loss of two working days to them. In such circumstances, learned Sessions Crmc 3425/10 7 Judge is directed to consider the application for re-calling Pws.1 to 4, if filed through a counsel in accordance with law. The Additional Sessions Judge shall grant opportunity to the accused to cross examine them. Petitioners cannot be granted two months time as sought for. Learned Additional Sessions Judge is directed to take up the case after 6/9/2010. Petitioners to make all necessary arrangements to see that trial of the case is proceeded smoothly. M.SASIDHARAN NAMBIAR, JUDGE. uj.