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TMI Blog2011 (2) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... important constitutional and legal question is involved. 4. That question is 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? 5. In the present case, it appears that Criminal Appeal 137 of 2003 was decided by the Gauhati High Court on 1-6-2010 in the absence of the counsel for the appellant-accused and the conviction was upheld. 6. Mr. Nariman, learned senior counsel, pointed out that earlier the counsel for the appellant-accused was Mr. A.S. Choudhury but the appellant changed his counsel and appointed Mr. B. Sinha in the year 2007 as his ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice." 12. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, it has been held by a Constitution Bench of this Court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. We are of the opinion that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory right under Section 340 Cr.P.C. a Constitutional right in respect of criminal or quasi-criminal proceedings." 15. We are fully in agreement with Mr. Seervai regarding his above observations. The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long period under the formula 'Na vakeel, na daleel, na appeal' (No lawyer, no hearing, no appeal). Many of them were lawyers by profession, and knew the importance of counsel, particularly in criminal cases. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in his nature to indulge in, to abstain from all political and public work merely because there is a dreadful law in the land." 17.In Gideon v. Wainwright, 372 US 335 (1963) Mr. Justice Hugo Black of the US Supreme Court delivering the unanimous judgment of the Court observed :- "Lawyers in criminal courts are necessities, not luxuries" 18. In Brewer v. William, 430 US 387 (1977) Mr. Justice Stewart delivering the opinion of the US Supreme Court observed ;- "The pressures on state executive and judicial officers charged with the administration of the criminal law are great. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all." 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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