CAN AN ADVOCATE BE CITED AS A WITNESS FOR AN ACCUSED?

Answer: YES.

 

CONTENTS

TABLE OF AUTHORITIES

Section 111. Citing advocate for accused as a witness

 

TABLE OF AUTHORITIES

Cases

Bombay High Court in Emperor v Dadu Kama AIR 1939 Bom 150, 40 Cr LJ 568    2

Cobbett v Hudson (1853) I El and B1 11    3

Corea v. Peiris 1909 AC 549    3

re Chathukutty AIR 1959 KER 119    3

Weston v Peary Mohan Dass AIR 1914 Cal 396, ILR 40 Cal 898 (SB)    3

Statutes

S. 118 of the Evidence Act    3

 

Section 111. Citing advocate for accused as a witness

There is nothing necessarily unprofessional in Counsel giving evidence in a case in which he appears as such. There have been several cases both in England and this country in which this cause has been taken with an objection.

The question whether the court has got jurisdiction to forbid an advocate to appear in a particular case and under what circumstance the court should exercise the jurisdiction, if it has such jurisdiction, has been considered by the Bombay High Court in Emperor v Dadu Kama AIR 1939 Bom 150, 40 Cr LJ 568. It has been observed in that case:

‘On the one hand, an accused person is entitled to select the advocate whom he desires to appear for him, and certainly the prosecution cannot fetter the choice merely by serving a subpoena on the advocate to appear as a witness. On the other hand, the court is bound to see that the due administration of justice is not in any way embarrassed. Generally, if an advocate is called as a witness by the other side, it can safely be left to the good sense of the advocate to determine whether he can continue to appear as an advocate, or whether by so doing he will embarrass the court or the client. If a court comes to the conclusion that the trial will be embarrassed by the appearance of an advocate who has been called as a witness by the other side, and if notwithstanding the court’s expression of its opinion, the advocate refuses to withdraw, in my opinion, in such a case the court has inherent jurisdiction to require the advocate to withdraw. An advocate cannot cross-examine himself, nor can he usefully address the court as to the credibility of his own testimony, and a court may well feel that justice will not be done if the advocate continues to appear. But, in my opinion the prosecution, in such a case must establish to the satisfaction of the court that the trial will be materially embarrassed, if the advocate continues to appear for the defence.’

In Weston v Peary Mohan Dass AIR 1914 Cal 396, ILR 40 Cal 898 (SB) –, the Calcutta High Court have said on the very same subject:

‘In the Privy Council decision, Corea v. Peiris 1909 AC 549, a gentleman named Schoroder was examined as witness, though counsel in the case. The Judiciary Committee did not approve of this as contrary to the professional ethics of which Mr Justice Fletcher speaks, but on the contrary they stated that Counsel had been properly examined.

The rule in such matters is, in my opinion, as follows: Counsel, though they may be engaged in the case, are in law competent to testify whether the facts in respect of which they gave their evidence occurred before or after the retainer. See S. 118 of the Evidence Act, and Cobbett v Hudson (1853) I El and B1 11. The court has no authority to exclude such evidence if tendered. It is not in all cases a breach of professional ethics for counsel retained in the case to give his evidence in it. There are cases in which he properly may, and, indeed, should do so. At the same time it is recognized by the profession that, as a general practice, it is undesirable, when the matter to which Counsel deposes is other than formal, that they should testify either for or against the party whose case they are conducting. In judging the matter from the point of view of what is desirable as opposed to what is legal, much must depend on the circumstances of each case.’

The same view is taken by the Kerala High Court in re Chathukutty AIR 1959 KER 119, 1959 MLJ (CR) 210, 1959 Cr LJ 474, 1959 Ker LJ 436

 

REFERENCES

  1. Sanjiva Row, The Advocates Act, 1961, Lexis Nexis 8th Ed, 2014