- (1.) Learned Sessions Judge, Jamtara while was in seisin of a case bearing Sessions Trial No. 76 of 2009 in which accused Manjuda Mahali was facing charge under Section 376 of the Indian Penal Code, fixed it for evidence on 14.12.2009 on which date, prosecution witness put his attendance but neither the accused, who was on bail appeared before the court nor his Advocate, namely, Bibhuti Bhushan Singh did appear and as such, bail bond of the accused was cancelled and at the same time, defence counsel Sri Bibhuti Bhushan Singh was debarred from doing pairvi for the said accused. It was further ordered that: bail application filed on behalf of the accused would only be entertained if it is filed by another Advocate and not by Mr. Bibhuti Bhushan Singh.
(2.) Subsequently, learned Sessions Judge transferred the case before the 5th Additional Sessions Judge-cum- F.T.C. Jamtara. On 17.1.2010 the accused Manjuda Mahali was arrested and thereupon, a bail petition was filed on behalf of the accused by the same counsel Sri Bibhuti Bhushan Singh on 21.1.2010. When it was moved by him, his very appearance was objected by learned A.P.P by referring the order dated 14.12.2009 under which learned Sessions Judge, Jamtara had debarred Sri Bibhuti Bhushan Singh for defending the accused which put the learned 5th Additional Sessions Judge, Jamtara at fix as on one hand, the accused does have constitutional as also legal right to be defended by legal practitioner of his choice but on the other hand, there was an order of the learned Sessions Judge debarring the counsel of the choice of the accused for defending the accused which order cannot be recalled/reviewed by succeeding court in view of the provision as contained in Section 362 of the Code of Criminal Procedure and as such, following questions were referred to under Section 395(2) of the Code of Criminal Procedure for its determination by this Court: (1) Whether learned defence counsel Sri Bibhuti Bhushan Singh may be permitted to appear in instant case without recalling the order dated 14.12.2009 passed by learned Sessions Judge, Jamtara? (2) Whether this Court can recall/review the above said order passed by the learned Sessions Judge, Jamtara which in opinion of this Court can not be done because this Court is also exercising jurisdiction of sessions court as an Additional Sessions Judge. (3) How to proceed in the instant sessions trial, when the accused is not ready to engage any other lawyers whether compelling accused to engage another, will not affect his legal right to be defended by a Pleader/Legal Practitioner of his (accused) choice.
(3.) Upon institution of the case, Sri B.M. Tripathi, learned senior counsel was appointed as amicus curiae to assist this Court in favour of the reference whereas Sri Ramesh Kumar Singh, learned Counsel was appointed as amicus curiae to assist this Court against the reference.;