Appellate Court Must Appoint An Amicus To Assist It In The Disposal Of Appeal In Case Of Non-Appearance Of Appellant : Jharkhand High Court Reiterates

The Jharkhand High Court has held that an appellate court is required to consider all the materials on record and arrive at findings and in case of non-appearance of the appellant, the appellate court ought to have at least appointed an amicus to assist the court from the side of the appellant in the disposal of the appeal.

Justice Anubha Rawat Chowdhary relied on the Supreme Court's observation in Mohd. Sukur Ali v. State of Assam, 

"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."

Background:

The petitioner was convicted and sentenced to undergo rigorous imprisonment for one year and fine of Rs. 1,000/- for offences punishable under Section 304 A of the Indian Penal Code [Causing Death By Negligence] and for the offence punishable under Section 279 [Rash Driving] with a fine of Rs. 1,000/-

While hearing the criminal appeal filed against said conviction, the appellate court recorded that despite repeated adjournments, no one turned on behalf of the appellant-petitioner to argue the matter. The arguments of the State were concluded in the absence of the petitioner and the matter was posted for judgement.

Senior Advocate B.M. Tripathy, representing the instant petitioner argued before the High Court that the appellant-petitioner wasn't heard by the appellate court.

He relied on the decision in Sukur Ali to state that even if the counsel did not appear, an amicus ought to have been appointed for the disposal of the case. He further submitted that the appellate court was final court to decide on facts and the assistance of a counsel representing the petitioner was required to be taken by the appellate court.  

Additional Public Prosecutor, PD Agarwal agreed that the matter may be remanded back to the appellate authority for fresh hearing and disposal within a given time frame.

Findings:

The Bench was of the opinion that the appellate court had not heard the petitioner at the time of disposal of the appeal which had resulted in passing of impugned judgement in absence of the petitioner.

It was also of the view that the appellate court was required to consider all the materials on record and in case of non-appearance of the appellant, the court ought to have at least appointed an amicus to assist it from the side of the appellant.

Hence, the High Court went on to set aside the impugned judgement passed in the criminal appeal in 2012, and sent the matter back to the appellate court for fresh consideration after giving an opportunity of hearing to the petitioner as well as the State.

"The parties are directed to appear before the court of learned Principal Sessions Judge, East Singhbhum, Jamshedpur, through their respective counsels on 13.09.2021 and argue their respective cases. The learned Appellate court is directed to expeditiously dispose of the appeal on its own merits within a period of one month thereafter", the order adds.

Title: Ramesh Kumar v. State of Jharkhand

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