2011 (2) TMI 514 - SC - Indian Laws

Whether in a criminal case if the counsel for the accused does not appear for whatever reasons should the case be decided in the absence of the counsel against the accused or the Court should appoint an amicus curiae to defend the accused - Held that counsel for the accused does not appear because of the counsel s negligence or deliberately even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused - It was for this reason that they provided for assistance by counsel under Article 22(1) and that provision must be given the widest construction to effectuate the intention of the Founding Fathers - Held that it is open to the accused to either engage another counsel or the Court may proceed with the hearing of the case by the counsel appointed as amicus curiae

Summary

Issues:
1. Whether in a criminal case, if the counsel for the accused does not appear, should the case be decided against the accused in their absence or should the Court appoint an amicus curiae to defend the accused?

Analysis:
The Supreme Court considered a case where a criminal appeal was decided by the Gauhati High Court in the absence of the counsel for the appellant-accused, resulting in the upholding of the conviction. The appellant had changed their counsel, but the new counsel did not appear due to a clerical error in the cause list. The Court deliberated on the fundamental right to a fair trial and legal representation. It emphasized that the liberty of a person is a crucial aspect of the Constitution, protected under Article 21, and should not be compromised due to the absence of counsel. The Court referred to the US Supreme Court's decision in Powell v. Alabama, highlighting the importance of legal representation in ensuring a fair trial.

Furthermore, the Court cited previous judgments such as A.S. Mohammed Rafi v. State of Tamil Nadu and Man Singh v. State of Madhya Pradesh, reinforcing the principle that a criminal case should not be decided against the accused in the absence of a counsel. The Court underscored the significance of Articles 21 and 22(1) of the Constitution, which guarantee the protection of life and personal liberty, as well as the right to consult and be defended by a legal practitioner. It was emphasized that a fair and just procedure must be followed in criminal cases, and the right to legal representation is inherent in ensuring a just trial.

The Court also discussed the historical evolution and importance of the right to legal representation, dating back to ancient Rome and England. It highlighted the role of lawyers in defending the accused and stressed that the right to counsel is a fundamental aspect of a fair trial. The judgment referenced legal scholar Seervai's views on the constitutional right to be defended by counsel and emphasized the intention of the Founding Fathers in providing for legal assistance under Article 22(1) of the Constitution.

Moreover, the Court referred to speeches and judgments emphasizing the necessity of legal representation in criminal cases, such as the observations in Gideon v. Wainwright and Brewer v. William. Ultimately, the Court allowed the appeal, set aside the High Court's judgment, and remanded the case for a fresh decision after ensuring legal representation for the appellant. It directed that the case be heard by a different bench and reiterated the importance of appointing an amicus curiae if the counsel for the accused is absent, ensuring a fair trial and upholding the right to legal representation in criminal proceedings.