The Kerala High Court held that an accused has a right to choose his lawyer for conducting the trial and hence the convenience of the lawyer also should be taken care of by the Court while scheduling trials, subject to the condition that the submission of the lawyer should be genuine.

The High Court held so while considering a petition challenging an order, whereby an application filed by the petitioners/accused seeking rescheduling of a Murder trial was dismissed by the Sessions Judge stating that, the High Court in Official Memorandum no. HCKL/1701/2023-E6(B) dated Aug 07, 2023 directed for disposal of all murder cases immediately.

A Single Judge Bench of Justice P.V Kunhikrishnan observed that “Whether the submission of a lawyer for getting a date for trial is genuine or not is to be decided by the Court at the stage of scheduling the trial. If the submission of the lawyer of the accused or prosecution is genuine, the Court should be magnanimous to accept it and schedule the trial as requested by them after considering the convenience of the Court also”.

Advocate V.A Johnson appeared for the Petitioner, whereas Public Prosecutor appeared for the Respondent.

After considering the submission, the Bench observed that simply because the High Court had directed to dispose all murder cases immediately, that does not mean that the convenience of the lawyers need not be looked into by the trial court.

Further, the intention of the High Court while passing such a memorandum is only to see that the old murder cases are to be disposed of immediately, added the Bench.

The Bench elaborated that when a lawyer comes before the court saying that he is already engaged in some other sessions case and he is ready to conduct the trial on a particular date, the Court should hear that submission in a pragmatic manner.

Referring to Rule 77A(2) of the Criminal Rules of Practice, Kerala, 1982 which says that, after the commencement and immediately after framing the charge, the Court shall hear the prosecution and the accused to ascertain and fix consecutive dates for recording evidence, the Bench emphasized that the prosecution and the accused are having a role while fixing the date of trial, and there cannot be a unilateral decision from the Court alone while scheduling trial.

Hence, the High Court set aside the said order passed by the Sessions Court with a direction to the Judge to reconsider the matter in accordance to law.

Cause Title: Vishnu v. State of Kerala [Neutral Citation: 2023/KER/68211]

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Kerala High CourtJustice P.V. Kunhikrishnan

Pankaj Bajpai