Impermissible To Dismiss Bail Plea Due To Absence Of Counsel, Court May Appoint Amicus For Accused & Hear Matter: Allahabad HC

The Court added that in such cases, an amicus curiae should be appointed to represent the applicant/prisoner and the matter be heard on merits.

Significantly, the bench of Justice Ajay Bhanot also observed that the absence of the counsel at a bail hearing deprives the prisoner-applicant of all ability to influence the outcome of a proceeding where his personal liberty is at stake.

“When a bail application is dismissed for non-prosecution, the prisoner’s period of detention is enlarged by default even as he goes unrepresented and unheard before the court…” the Court further opined.

These observations were made when the Court was dealing with the bail plea of one Maneesh Pathak, booked for the offence of attempt to murder, wherein it noted that the Counsel for the applicant was not present before the Court.

The Court perused the order sheet which disclosed that the counsel for the applicant had not appeared before this Court on successive dates of hearing in the past and hence, the Court, at the outset, appointed Advocate Omar Zamin as the amicus curiae and proceeded to hear the matter.

However, before granting him bail, the Court pondered upon the question as to whether the bail application should be dismissed for non-prosecution or an amicus curiae should be appointed to represent the applicant and the matter be heard on merits.

While examining the abovesaid question, the Court noted that the right to bail is derived from statute but cannot be isolated from constitutional oversight.

Importantly, the Court opined that in bail applications, special care has to be taken by the counsel since the applicant is in jail and the counsel is his sole representative before the court.

In this regard, the Court stressed upon the duty of the counsels and the Courts to assist such accused/prisoners, as it observed thus:

“Time honoured conventions of the nobel profession cast an unconditional duty on the prisoner's counsel to be present at the bail hearing. It is immaterial whether the counsel’s professional remuneration has been paid or not. Failure of a counsel at to turn up at a bail hearing may even constitute a misconduct…The Bar is the frontline sentinel of citizens’ rights and liberties. The courts are the last bastion of constitutional law and justice. Judges have an oath enshrined in the Constitution. Lawyers have a pledge seared in their consciences to serve justice in the nobel traditions of the legal profession. Translated in terms of lawyers’ duties to their clients it essentially means this. Lawyers have to diligently prepare the briefs and vigilantly prosecute causes of litigants before the court.”

The Court also observed that though dismissal of a lis for non-prosecution is a practice evolved by courts over long years for the efficient administration of justice, the same is not the case when a person is in jail.

“15. Absence of the counsel at a bail hearing deprives the prisoner-applicant of all ability to influence the outcome of a proceeding where his personal liberty is at stake. When a bail application is dismissed for non prosecution the prisoner’s period of detention is enlarged by default even as he goes unrepresented and unheard before the court. 16. Prisoners who apply for bail often live in poor and destitute circumstances. On many occasions they do not have effective pairokars who can oversee the presence of counsels at bail hearings,” the Court observed as it took note of the plight of the prisoners.

In this regard, the Court also quoted Nelson Mandela’s words in Long Walk to Freedom: “Prison and the authorities conspire to rob each man of his dignity”

Lastly, stressing that personal liberty is the fount of all rights and that protection of liberty is the crown of the court process, the Court observed that while deciding bail, the courts have to be cognizant of the entitlement of prisoners to legal aid, and also alert to their right to have a hearing.

Consequently, having heard the amicus, the Court went ahead to grant bail to the accused and directed the trial court to ensure that the sureties demanded of the applicant are commensurate with his socioeconomic status.

Case title - Maneesh Pathak vs. State of U.P. [CRIMINAL MISC. BAIL APPLICATION No. - 18536 of 2020]

Case Citation: 2023 LiveLaw (AB) 80

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