Md.Sukur Ali Vs State
of Assam
O R D E R
Leave granted. Heard
learned counsel for the parties. We have also heard Mr. Fali S. Nariman,
learned senior counsel, who very kindly consented to assist us as Amicus 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 : 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 : 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 : 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. 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 : 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 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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