Md.Sukur Ali vs State Of Assam

Curiae in this case in which an important constitutional

and legal question is involved.

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 ?

In the present case, it appears that Criminal Appeal

137 of 2003 was decided by the Gauhati High Court on

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01.06.2010 in the absence of the counsel for the appellant-

accused and the conviction was upheld.

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 new

counsel, and this fact is corroborated by affidavit.

Unfortunately, the name of Mr. Sinha as counsel for the

appellant was not shown in the cause list when the case was

listed and the name of the former counsel Mr. Choudhury was

shown. In these circumstances, Mr. Sinha who was engaged

by the appellant as his new counsel did not appear.

We are of the opinion that even assuming that the

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. 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

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Constitution. Article 21 can be said to be the 'heart and

soul' of the fundamental rights.

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 of the US

Supreme Court in Powell Vs. Alabama, 287 US 45 (1932),

in which it was observed :-

"What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right 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 perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense".

:3: The above decision of the US Supreme Court was cited

with approval by this Court in A.S. Mohammed Rafi Vs.

State of Tamil Nadu & Ors., AIR 2011 Supreme Court 308,

vide para 24.

A similar view which we are taking here was also taken

by this Court in Man Singh & Anr. Vs. State of Madhya

Pradesh (2008) 9 SCC 542, and in Bapu Limbaji Kamble Vs.

State of Maharashtra, (2005) 11 SC 412.

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 personal liberty except according to procedure established by law".

Article 22(1). Protection against arrest and detention in certain cases. - (1) No person who is arrested shall be detained in custody without being 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."

In Maneka Gandhi vs. 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

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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

absence of a counsel, there will be violation of Article 21

of the Constitution.

The right to appear through counsel has existed in

England for over three centuries. In ancient Rome there

were great lawyers e,g, Cicero, Scaevola, Crassus, etc.

who defended the accused. In fact the higher the human

race has progressed in civilization, the clearer and

stronger has that right appeared, and the more firmly has

it been held and asserted. Even in the Nuremberg trials

the Nazi war criminals, responsible for killing millions of

persons, were yet provided 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.

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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

that right a constitutional right, and unless

there are compelling reasons, Article 22 (1)

ought not to be cut down by judicial

construction........ It is submitted that Article

22 (1) makes the statutory right under Section

340 Cr.P.C. a Constitutional right in respect of

criminal or quasi-criminal proceedings."

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

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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 effectuate the intention of the Founding

Fathers.

In this connection, we may also refer to the ringing

speech of Rt. Hon. Srinivasa Sastri, speaking in the

Imperial Legislative Council, at the introduction of the

Rowlatt Bill, Feb 7, 1919 (the Rowlatt Act prohibited

counsels to appear for the accused in cases under the

Act):-

"When Government undertakes a repressive policy, the innocent are not safe. Men like me would not be considered innocent. The innocent then is he who forswears politics, who takes no part in the public movements of the times, 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 :7:

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 better that a few rascals should walk abroad than that the honest man should be obliged for fear of the law of the land to remain shut up in his house, to refrain from the activities which it 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."

In Gideon vs 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"

In Brewer vs 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. " :8:

For the reasons stated above, we allow this Appeal,

set aside the impugned judgment of the High Court and

remand the matter to the High Court for a fresh decision

after hearing Mr. Sinha, the new learned counsel for the

appellant in the High Court, or any other counsel which has

been engaged by the appellant, or in the absence of these,

an amicus curiae being a lawyer practising on the criminal

side.

The case shall be heard by a Bench of Judges other

than those who passed the impugned judgment.

The Order dated 24.01.2011 passed by this Court

granting bail to the appellant shall continue till the

appeal is decided by the High Court.

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.

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

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precluded from appearing and arguing the case on behalf of

the accused. But, in such a situation, 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.

......................J. (MARKANDEY KATJU)

.......................J. (GYAN SUDHA MISRA) NEW DELHI;

FEBRUARY 24, 2011.

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