Junior counsel can do Cross-Examination – Delhi High Court

Nitika Gupta v. Sudha Gupta, CM(M) 1644/2019 and CM APPL. 49836/2019, 49837/2019 CM(M) 1644/2019 and CM APPL. 49836/2019, 49837/2019  – 19th November, 2019

A brief history of this case, before it reached the door steps of the Honorable High Court of Delhi, is that the main counsel for the petitioner (Respondent before the trial) was busy attending some other matter in Honorable High Court of Patna. Thus his junior council appeared on behalf of the respondent and he was ready to cross examine the prosecution witness No.3. Also that was the last and final opportunity granted to the respondent for cross examining prosecution witness No.3. But the trial court did not allow the junior counsel to cross examine the witness stating that he was neither authorized by the main counsel nor by the respondent to cross examine the witness. That day being the last and final opportunity granted to the respondent for cross examining the petitioner’s witness and since the matter pertained to senior citizen, adjournment was also rejected for the respondent to the trail.

The petitioner in this case challenges the impugned order dated 18th October, 2019 by which the right to cross examine the prosecution witness No.3 was ceased.

The Honorable High Court of Delhi observed the following things regarding the case. The court here referred the recent judgment of the same Court in Veena Gupta V. Bajaj Allianz Life Insurance Co. Ltd. In this case it is clearly held that, as long as the junior counsels are from the same filing counsel’s office and they are ready to cross examine the witness and to argue the matter, the court cannot take away that power. Also in this judgment the term “proxy counsel” is well explained. It is held in this judgment that,

“the term ‘proxy counsel’ ought to be used only when the counsels, who appear, are not able to assist the Court in the matter or are merely seeking an adjournment. Junior counsels who work in the filing counsel’s chamber, and are aware of the facts and assist the court, ought not to be described as proxy counsels”

Also the court in this case held that courts are duty bound to encourage junior counsels who may not have filed vakalatnamas and are ready to aid the court. Ignoring junior counsels not only discourages them but also creates delays in the dispensation of justice. Filing counsel should also encourage junior advocates to make submissions and argue matters.

“When junior counsels appear and assist the court, instead of describing them as ‘proxy counsels’ alternative terminology such as ‘Advocate appearing for learned counsel for the Plaintiff/Defendant’ can be adopted”

The court in this case finally held that the term ‘proxy counsel’ can be used only when the junior or other counsel is completely unrelated or unprepared in the case. This would help junior counsels to get prepared in the matters and are ready to make submissions instead of merely taking Passover and adjournments.

Thus by citing the above case as a glaring example the Court in this case held that the impugned order infringed the right of the respondent to cross examine the prosecution witness No.3. The order clearly records that Shri. Goswami, the junior counsel representing the petitioner (Respondent before the Trial Court), who appeared before the learned Additional Civil Judge was ready to cross-examine the prosecution witness No.3. In such a case there is no reason for the learned Additional Civil Judge to disallow the said junior counsel to cross examine the prosecution witness No.3. The court also mentioned the case of Veena Gupta versus Bajaj Allianz Life Insurance Co. Limited, CM(M) 1555/2019 Decided on 30th October, 2019,

“Further, it is noticed that in the District Courts, junior counsels, who appear from the chambers of the counsels who file vakalatnamas, are reflected as “Proxy Counsel”.  From this, it is not clear as to whether the junior counsels, who appear, are ready to assist the Court or not.  The term “Proxy Counsel” ought to be used only when the counsels, who appear, are not able to assist the Court in the matter or are merely seeking an adjournment. Junior counsels, who work in the filing counsel‟s chamber, and are aware of the facts and assist the court, ought not to be described as proxy counsels. In the practice of law, courts have a duty to encourage junior counsels who may not have filed vakalatnamas and ought to hear them if they are ready to assist the court.”

From this judgment the Honorable High Court of Delhi has set aside the impugned order of the Trial Court to the extent it did not permit cross examination. Also the Court has ordered for the cross examination of the prosecution witness No.3 on the next day before the learned Trial Court prior to the commencement of the re-examination. The Honorable High Court of Delhi directed that this order shall be communicated to the learned Additional Civil judge’s Court, so that the counsel for the Respondent (Petitioner before the Trial Court) is duly informed so that prosecution witness No.3 is present the next day for the cross examination.

View/Download Judgment: Nitika Gupta v. Sudha Gupta

– Priyadharshini R

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