L.S.MEHTA, J. - (1.) SHAMSHER Singh petitioner made a complaint in the court of Additional Munsif Magistrate, First Class, Ajmer City (East) under Section 500, read with Section 109, I.P.C., and under Sections 504 and 506, I.P.C., In that complaint the accused are - (1) Amrit Kumar, Advocate, and (2) Ajit Singh. In the course of trial Samshasher Singh appeared as a witness on April 20, 1971. After the Examination -in -chief of the witness was over, the accused were directed to cross -examine him. At the initial stage of the cross -examination Amrit Kumar submitted to the court that he would conduct cross -examination on behalf of himself and accused Ajit Singh. An objection was raised on behalf of learned Counsel for the complainant that since Amrit Kumar was himself an accused in the case, he could not represent Ajit Singh. That objection was over -ruled by the trial court. This revision petition has accordingly been filed against that order.
(2.) A short question that arises for the disposal of this revision petition is whether an Advocate, who is an accused in a criminal case, can represent the co -accused at the trial. If the proposition propounded by the court below is accepted, the accused would be in dock for a part of the time and would be in counsel's seat for the remainder of the time. This would be a startling proposition. There is no objection to an Advocate, who being tried for a criminal offence to conduct his own defence. He is fully entitled to do so. But he cannot put up his appearance in the court in the same matter in two capacities. In other words, he cannot be permitted to stand in the dock at one time and to appear as counsel for his co -accused at the other. In New Brunswick and Canada Railway Co. v. Conybear 1862 (9) H.L.C. 711 it has been observed by the Lord Chancellor (Lord Westbury), - Certainly. But not both as party and counsel. The respondent must elect to argue in person or not. There cannot be a mixture of the two characters. In Nuton v. Chaplin (1850) (19) L.J.C.P. 374 the Court of Common Pleas held that a barrister, who was a party in an action, civil or criminal, is in the same position as any other party. Wilde C.J. observed: I do not think that a party in a civil or criminal case, who is also counsel, is in a different position from any other party. In a criminal matter, a party would not be entitled to sit in wig and gown among the bar as his own counsel. In re S. Subramnya Sarma and Ors. A.I.R. 1941 Mad. 808 Leach C.J. observed - An advocate who is accused of a criminal offence or is a party in a civil court is fully entitled to conduct his own defence or his own case but he cannot appear in the same matter both as a counsel and party. Consequently, an advocate who is accused with others of a criminal offence cannot appear at the trial as counsel for his co -accused.
(3.) ARTICLE 22(1) of the Constitution provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.;