LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Rajan Salvi (Lawyer)     02 December 2009

JUdge decides what witnesses should be examined.

Rediffmail news

The special 26/11 trial court, on Monday, sacked Abbas Kazmi, the defence counsel for Pakistani gunman Ajmal Kasab [ Images ] for "non-cooperation," three days after it showed leniency and allowed him to continue accepting an unconditional apology for his controversial utterances.

Judge M L Tahaliyani ordered Kazmi's termination after he refused to consider the court's suggestion to pick out 71 formal witnesses out of the total 340, including the doctors who treated the victims, conducted the post-mortem, those who drew inquest panchnama, carried forensic evidences to labs and victims' family members who claimed the bodies.The court asked Kazmi to consider how many witnesses he would like to cross-examine from the first category of 71 witnesses, but he insisted on examining all 340, rejecting the court's suggestion.

"Kazmi is not cooperating with the court in the interest of justice. He is trying to drag the trial and is unnecessarily consuming the time of the court," the judge observed. "It appears that Kazmi has developed a feeling that he has become indispensable and without him the trial cannot go on. He has developed a feeling that the court is helpless without him," the judge said angrily, adding "this gives out a wrong signal to everyone and it is high time that either Kazmi withdraws from the case himself or the court terminates his appointment." The court is likely to consider the appointment of one more advocate in the place of Kazmi.

Judge M L Tahaliyani also directed Kazmi to hand over all the documents and chargesheet of the case to advocate K P Pawar, who is assisting him in the case. On November 27, Tahaliyani had decided against sacking Kazmi after he tendered apology for his remark during angry courtroom exchanges the day before that he did not care about affidavits of witnesses filed by the prosecution.

Kazmi was appointed as Kasab's defence lawyer by the court for the trial which began in March 2008. The judge had also withdrawn his observation that Kazmi was a liar. The observation had come the previous day after Kazmi denied that special public prosecutor Ujjwal Nikam had stated in his opening address on May 8 that he would file affidavits of formal witnesses.

A controversy had erupted on November 26, the first anniversary of the Mumbai terror attacks [ Images ], when prosecutor Nikam informed the Judge that he desired to file 340 affidavits of formal witnesses and that copies of 233 such documents had already been served on the defence lawyer. Nikam said he did not to personally call the witnesses to save the court's time.

When the judge asked Kazmi whether he wanted to cross examine any of these witnesses, Kazmi said that he would declare his strategy after Nikam filed these affidavits in the court. Nikam said he had informed the court in his opening address on May 8 that he would be filing such affidavits. However, Kazmi disputed Nikam's claim, saying he had not made such disclosure in his opening address, prompting the judge to say that he (Kazmi) was telling lies.

After the issue was resolved on November 27, copies of 340 affidavits were officially handed over to Kazmi and two other accused, Fahim Ansari and Sabauddin Ahmed.


My personal opinion is that the trial may be set aside because of this. Judge cannot decide which witnesses the accused's lawyer wants to examine.


 16 Replies

sunil pagare (lawyer)     02 December 2009

It is depend upon Prosecution which witness want to examine to prove the case & the witness examine by prosecution accused has right to cross examine him. After closing prosecution side accused right to examine himself in his defence & his defence witnesses after his statement u/s 313of cr.p.c.Judge cant decide whom to be examine.

1 Like


In fact Defense counsel Kazmi  should be congratulated  for sticking to his guns and not succumbing to the pressure of judge.

Rajan Salvi (Lawyer)     02 December 2009

Defence Counsel should be congratulated for this but he should have put his foot down when he was asked to remove his shoes for checking when other people were not done so and when he was not allowed to use the mobile and Nikam was allowed to do so. The Judge failed to appreciate that Mr Kazmi by agreeing to work for a meagre fee, without infrastructure , with public opinion against him , only one junior agreed to take on the case. Legal Aid Advocates deserve to be treated better. What exactly has Mr Kazmi derieved from all this? Such an incident is akin to taking advantage of thier status/weakness. They may be new to the proffession. They may lack in experience , BUT THEY ALSO ARE ,ARE BROTHERS IN ADVOCACY.

S.B.adil rahman (Legal Consultant )     02 December 2009

 I agree with the comments of all the Ld. friends and seniors. Kazmi worked in a hostile atmosphere and what he sought was strictly in the interest of the justice and fair proceudre during trial. In this case the accused had pleaded guilty but the judge did not respond. Now when the defence is fighting the case the court is un cooperating with the Defence lawyer. This behaviour is the unnecessary interference in the administrartion of justice by the judge himself. Why did  the judge linger the trial when the accused had pleaded guilty?

1 Like

hisifybird (retd)     02 December 2009


Dear Shri Rajan, Though I saw this news item, I had not understood the implications of it. Now I understand that Lawyers are having those prerogatives. Good write up.




Abbas Kazmi dig his own pit like Pakistan Government. Some times No  and Yes. Being a Lawyer he must obey to the court first. Kasab is a dead rat in the cage. Insha allah the time is near for this dead Pakistani rat.


Adil - Despite being a fresh law graduate, your understanding of the matter is really appreciable.


The Abbas Kazmi is having  pressure how to cover it up his own mistakes and lies.

Poor Muslim professinal killer and Pakistani Terrorist also under presure what to do one day I want every thing in Urdu. Yes I can under stand I did it oh they made me to say.

Being a professional lawyer he should not come out saying that I had to remove my shoes and get them checked each time.I entered the court, I had to surrender my watch,pen to the security Guard, these are Professional Lawyer Abbas Kazmi complaints. What a shame it is. After removing only he realised oh all these days I did it. And this is the time to open his history in public. These are all security check up. Which was clearly stated before signing the documents in the court. 

Pakistan Government also told initially Kasab is not from Pakistan. Thank God they did not mentioned in there report he is from Nepal because we both are white in colour. 

S.B.adil rahman (Legal Consultant )     04 December 2009

Mohan Das ji, I appreciate your feelings of hatred towards Pakistan. But you know that the job of defending Kasab was forced upon Kazmi. Ethics of profession always says to stick to some norms. Apart from what was the personal feeling of Kazmi about security checks, his claim or claim of any lawyer as regard defending his client is his sole prerogative. In trials there is no win win position for the both sides. One has to loose. So if Kazmi loses in such a strong evidenced case , which is bound to be, then he should be provided ample opportunity for defending his client specially when you do not accept  the guilt of the accused even on pleading guilty.  Trial is is the stage where the lawyers can ventilate all their grievances. What Kazmi is doing is nothing new which is not done by the lawyers to defend their clients. One request to you, this forum is purely a legal forum. Please offer some constructive comments which will help the other  lawyers. Passions, abuse, heart burning talks, conjectures and surmises do not play any role in the administration of justice. More over please write correct English e.g you wrote "Thank God they did not mentioned in there report"   It should infact have been "Thank God they did not mention  in their reports". Thanks.

2 Like


Adil - You are really impressive.  Hard to believe that you are a fresh law graduate. Your articulationn is very mature. Very good.  Keep it up.


As per s.303 Cr.P.C Kasab is entitled to be defended by a pleader of his choice.  Suppose now he reconsiders his earlier decision and now he insist that he be defended by Kazmi for the balance of the trial, What would be the legal consequence?

Rajan Salvi (Lawyer)     04 December 2009

Mr. Menon, You have raised an intresting question, but other question is Kasab is not even aware that he has this right. As I said earlier, the case may be remanded back for retrial on these grounds alone. Ignorance of law is no excuse .It is presumed that law of the land is known by the adivasi living in a remote distant forest, as soon as the law is passed. My question is does this presumption extend to a person who is not a citizen of India?


Sir - I think you have slightly mixed up.  Ignorence of law is no excuse is a principal equally applicable for citizen of India and non citizen.  This principal operates against the accused. 

I have raised this question to point out that  that the decision to sack Kazmi is erroneous. If as I suggested, it does really happen, then wont it reflect adversly (to put it mildly) on the presiding officer. Then in such a situation it would be Kazmi himself who would be indispensable to the Judicary by coming in its aid by refusing to represent Kasab, maybe at the cost of his professional ethics.

Anil Agrawal (Retired)     04 December 2009

 Personal animosity won't do Mr. Gandhi. Kasab is being tried under the law of the land. If hatred is in our mind, he ought to be hanged by the nearest lamp post. Custodial deaths in police lock up abound. Why don't we support it?

I request friends not to allow their hearts to rule over mind.

1 Like

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register