Criminal Appeal Cannot Be Dismissed Merely For Non-Representation Or Default Of Accused' Advocate, Reiterates Supreme Court

The Supreme Court observed that a court cannot dismiss the appeal filed by an accused merely because of non-representation or default of the advocate for the accused.

if the accused does not appear through counsel appointed by him/her, the Court is obliged to proceed with the hearing of the case only after appointing an amicus curiae, the bench of Justices AM Khanwilkar and Sanjiv Khanna said.

In this case, the Madras High Court dismissed the accused's criminal appeal for non prosecution on the ground that there was no representation on behalf of the appellant either in person or through the counsel on record.

"8. It is well settled that if the accused does not appear through counsel appointed by him/her, the Court is obliged to proceed with the hearing of the case only after appointing an amicus curiae, but cannot dismiss the appeal merely because of non-representation or default of the advocate for the accused", the bench said while setting aside the High Court order. It referred to Kabira vs. State of Uttar Pradesh 1981 (Supp) SCC 76 and Mohd. Sukur Ali vs. State of Assam (2011) 4 SCC 729.

Allowing the appeal, the bench directed the High Court to hear the Criminal Appeal  afresh on its own merits and in accordance with law.

Precedents

In Mohd. Sukur Ali, the Supreme Court considered the question that 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 ? "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.", the bench of Justices Markandey Katju and Gyan Sudha Misra had observed. The court further held: 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.

Last year also, the court had set aside a Madras High Court order that had dismissed a Criminal Appeal against an order of conviction for default. It was observed that an appeal against an order of conviction cannot be dismissed in default but must be taken up and decided on merits even if the appellant in-person or the counsel representing him, is not present. In 2019, the Supreme Court, in Shankar vs. State of Maharashtra, had observed that, the appeal filed by the accused against the conviction can be disposed of on merits only after hearing the appellant or his counsel. "Where the advocate for the appellant is absent on the date of hearing, the Court shall either appoint an amicus curiae and then decide the appeal. Once the appeal against the conviction is admitted, it is the duty of the Appellate Court either to appoint an advocate as amicus curiae or to nominate a counsel through Legal Services Authority and hear the matter on merits and then dispose of the appeal. When the appellant was not represented by the advocate, in our view, the High Court ought not to have decided the matter on merits and the impugned order is liable to be set aside and the matter is remitted back to the High Court.", it was observed by the bench comprising of Justices R. Banumathi and AS Bopanna. In Christopher Raj vs. K Vijayakumar, the same bench had held that, the High Court, in a criminal appeal, cannot reverse the acquittal without affording any opportunity of hearing to the accused or by appointing an amicus curiae to argue the matter on his behalf if he does not enter appearance.

Case: K. Muruganandam vs. State [SLP(Crl) Diary 8150/2021]
Citation: LL 2021 SC 384
Coram: Justices AM Khanwilkar and Sanjiv Khanna
Counsel: AOR T. Archana for appellant, AOR Dr. Joseph Aristotle S., AOR Rahul Shyam Bhandari for respondents

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