Whether party can seek review of order on ground of change of Advocate?

In the case of M/s. Usha International Ltd. (supra) while relying upon the earlier Division Bench of this Court in the case of Rotary Club, Begusarai etc. (supra) the Hon'ble Division Bench of this Court had occasion to consider the review application which was filed by a change of lawyer. The Hon'ble Division Bench reiterated its views expressed in Rotary Club, Begusarai etc. (supra) as under:

".........Recourse to review by change of lawyers is normally deprecated by Courts. The practice becomes all the more reprehensible when review is sought on grounds pertaining to the previous conduct of the case or other grounds of fact normally within the knowledge of the previous lawyer(s). To my mind a lawyer must be very reluctant to take up a brief of review unless he had appeared in the case, the order passed in which is the subject of review. In case for some reasons a change of lawyer is unavoidable, the newly engaged lawyer would owe it to himself and to the profession to have the statement of facts duly verified by the lawyer earlier conducting the case. In case a review is filed by a new lawyer a certificate ought to be appended to the review petition, preferably by the previous counsel, stating that the facts stated in the petition were correct or alternatively by the newly engaged lawyer testifying that he had got the facts stated in the review petition verified by the previous lawyer........"

12. In the review application what is important to be seen is that if an error has occurred because of mistake of the Court or for any other reason which is likely to cause injustice to a party, the same is required to be corrected.

13. This Court is of the considered opinion that this review application by a change of lawyer is liable to be rejected in view of the Division Bench judgment of this Court in the case of Usha International (Supra). 

IN THE HIGH COURT OF PATNA

Civil Review No. 456 of 2018 in Miscellaneous Jurisdiction Case No. 1762 of 2017

Decided On: 30.04.2019

 Rishi Kesh Kumar  Vs.  Minakshi Kumari and Ors.

Hon'ble Judges/Coram:

Rajeev Ranjan Prasad, J.

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Whether court can permit recalling of witness on ground of change of Advocate?

 The above observations cannot be read as laying down
any inflexible rule to routinely permit a recall on the ground
that cross-examination was not proper for reasons
attributable to a counsel. 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.

8. In the present case also, one of the grounds for
recalling the witness is change of counsel. It is not permissible.
Witness can not be expected to face the ordeal of appearing in
the Court repeatedly. No acceptable grounds have been made
out for recalling the witness. There is neither any perversity nor
any illegality in the order passed by the learned trial Court.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMMO No. 254/2016
Dismissed on: September 5, 2016

Shri Mohd. Tariq 
V
Jaspal Singh and others 
Coram:
 Mr. Justice Rajiv Sharma, Judge
Citation: 2017 CRLJ 784HP

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Whether court can permit recalling of witness on ground of change of Advocate?

Their Lordships of the Hon'ble Supreme Court in State (NCT of Delhi) v. Shiv Kumar Yadav and another reported in (2016)2 SCC 402 have held that plea of recalling a witness has to be bonafide and mere change of a counsel, can not be a ground for recalling a witness. Their lordships have held as under:

"11. It is further well settled that fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of his choice, to be provided all relevant documents, to cross-examine the prosecution witnesses and to lead evidence in his defence. The object of provision for recall is to reserve the power with the court to prevent any injustice in the conduct of the trial at any stage. The power available with the court to prevent injustice has to be exercised only if the Court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the court before the power is exercised.

The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on the ground that cross-examination was not proper for reasons attributable to a counsel. 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."

8. In the present case also, one of the grounds for recalling the witness is change of counsel. It is not permissible. Witness can not be expected to face the ordeal of appearing in the Court repeatedly. No acceptable grounds have been made out for recalling the witness. There is neither any perversity nor any illegality in the order passed by the learned trial Court.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MMO No. 254/2016

Decided On: 05.09.2016

 Mohd. Tariq Vs. Jaspal Singh and Ors.

Hon'ble Judges/Coram:

Rajiv Sharma, J.

Citation: 2017 CRLJ 784 HP

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Whether court can permit recall of witness U/S 311 of CRPC on ground of change of counsel?

The Court in Shiv Kumar Yadav (supra) case explained
the said authority by opining thus:-
“15. …..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. The 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 the victims, especially so, of heinous crimes, if
they are required to repeatedly appear in court to
face cross-examination.”
We respectfully agree with the aforesaid exposition of law.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 805-806 OF 2016
(@ S.L.P. (Crl.) Nos. 3278-79 of 2016)
State of Haryana 
 Versus
Ram Mehar & Others Etc. Etc. 
Citation:AIR 2016 SC 3942

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Whether witness can be permitted to be recalled on ground of change of counsel?

These are the principles to be kept in mind while
appreciating the individual facts and circumstances, in order to
find out whether recall of the witness is necessary. There cannot
be any straitjacket formula for exercise of such discretion, which
is judicial in nature. The court has to find that recall of the
witness is necessary for the just decision of the case which is a
sine qua non for exercise of such discretion. The learned
President, Children's Court, on consideration of the evidence of
these witnesses, has come to the conclusion, and to my mind
rightly so, that such a recall would not be necessary. In the case
of Narayan Gadekar (supra), the concerned Advocate had
accepted his inadvertence in not putting contradictions to the
witnesses, because of which, it was found that recall of the witness
was necessary. I, thus, find that the said case would be
distinguishable on facts. It is trite that mere change of Counsel
would not be a ground for recall of any witnesses. The test would
be whether such a recall is necessary for the just decision of the
case. In that view of the matter, I do not find any case for
interference. 
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO.81 OF 2015
MR. ABDUL CHAPPARBAN

Versus
STATE
[Through Public Prosecutor,
High Court, Panaji, Goa] 
CORAM :- C. V. BHADANG, J.
Date :- 9thJuly , 2015.
Citation: 2016 ALLMR(CRI)2486

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