TMI Blog2011 (2) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - 546 of 2011 - - - Dated:- 24-2-2011 - Markandey Katju and Gyan Sudha Misra, JJ. REPRESENTED BY : Shri Fali S. Nariman, Sr. Advocate, as Amicus Curiae, S/Shri Azim H. Laskar, Bekash Kar Gupta and Abhijit Sengupta, Advocates, for the Appellant. Shri Avijit Roy and Ms. Vartika Sahay, for M/s. Corporate Law Group, Advocates, for the Respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the heart and soul of the fundamental rights. 8. In our opinion, a criminal case should not be decided against the accused in the absence of a counsel. We are fortified in the view we are taking by a decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense . 9. The above decision of the US Supreme Court was cited with approval by this Court in A.S. Mohammed Rafi v. State of Tamil Nadu Ors., AIR 2011 Supreme Court 308, vide para 24. 10. A similar view which we are taking here was also taken by this Court in Man Singh Anr. v. State of Madhya Pradesh, (2008) 9 SCC 542, and in Bapu Limbaji Kamble v. State of Maharashtra, (2005) 11 SCC 412. 11. In this connection we may also refer to Articles 21 and 22(1) of the Constitution. Articles 21 and Articles 22(1) are as under : Article 21. Protection of life and personal liberty. - No person shall be deprived of his life or person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided counsel. Therefore when we say that the accused should be provided counsel we are not bringing into existence a new principle but simply recognizing what already existed and which civilized people have long enjoyed. 14. Apart from the above, we agree with the eminent jurist Seervai who has said in his Constitutional Law of India , Third Edition, Vol. I, Pg. 857 :- The right to be defended by counsel does not appear to have been stressed, and was clearly not considered in any detail in Ajaib Singh s case (1953) SCR 254. But the right of a person accused of an offence, or against whom any proceedings were taken under the Cr.P.C. is a valuable right which was recognized by Section 340 Cr.P.C. Article 22(1) on its language makes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who retires into his house, mumbles his prayers, pays his taxes, and salaams all the government officials all round. The man who interferes in politics, the man who goes about collecting money for any public purpose, the man who addresses a public meeting, then becomes a suspect. I am always on the borderland and I, therefore, for personal reasons, if for nothing else, undertake to say that the possession, in the hands of the Executive, of powers of this drastic nature will not hurt only the wicked. It will hurt the good as well as the bad, and there will be such a lowering of public spirit, there will be such a lowering of the political tone in the country, that all your talk of responsible government will be mere mockery... Much bett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt granting bail to the appellant shall continue till the appeal is decided by the High Court. 22. We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him. 23. If on the next date of hearing the counsel, who ought to have appeared on the previous date but did not appear, now appears, but cannot show sufficient cause for his non-appearance on the earlier date, then he will be precluded from appearing and arguing the case on behalf of the accused. But, in such a situation, it is open to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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