Right Of Accused To Representation Integral Part Of Article 21, Trial Court Must Appoint Amicus In Absence Of Defence Counsel: Madras High Court

The Madras High Court recently set aside the order of conviction of one M/s. RK Emu Frams which was convicted under Sections 120B, 420, and 406 IPC and Section 5 of the Tamil Nadu Protection Of Interests of Depositors (TNPID) Act after observing that the order of conviction was passed without hearing the appellant/accused.

The court noted that the right of the accused to be represented was an integral part of Article 21 of the Constitution and that even when the counsel for the accused is absent, the Court should not remain helpless and must appoint an Amicus Curiae to represent the accused.

Justice Bharatha Chakravarthy observed as under:

Therefore, from the combined reading of the aforementioned judgments, it would be clear that right of the accused to be represented by a counsel has been held to be an integral part under Article 21 of the Constitution of India though the Court may not be helpless and proceeded further when the counsel for the accused is absent, still, it is seen that there must be an Advocate to represent the cause of the accused even if the learned counsel for the accused is absent for any reason.

Thus, the court opined that the action of the Trial Court in not appointing an Amicus Curiae to represent the accused before pronouncing orders was violative of Article 21 of the Constitution. The court, therefore, remanded the matter back to the Trial Court for fresh consideration.

In that view of the matter, I hold that the procedure adopted by the Trial Court in not even appointing an Amicus Curiae to represent the accused and hear the said Amicus Curiae before pronouncement of the judgment is not a correct procedure and therefore, the valuable right of the accused which is held to be a part of Article 21 of Constitution of India is violated. In view thereof, I am of the view that the judgment of the Trial Court has to be set aside and the matter has to be remanded back to the Trial Court for fresh consideration.

Background

The appellant mainly contended that when the matter was taken up for arguments before the trial court, the counsel for the accused was not present and the court, without t hearing the arguments on behalf of the accused and without appointing any Amicus Curiae, proceeded to hear the Public Prosecutor and convicted the appellants. Such conviction was therefore erroneous. 

The appellants also sought for an opportunity to recall some of the witnesses who were not cross examined earlier. An application for the same under Section 311 CrPC was allowed by the trial court in the condition to deposit a sum of Rs. 50,00,000/- and this was later dismissed for non compliance with the condition. The same was challenged before the High Court where the order was confirmed. Even though a Special Leave Petition was filed before the Supreme Court, the judgment was pronounced before it could be numbered. 

The Government Advocate, on the other hand, submitted that repeated opportunities were granted to the appellant/accused and the counsel remained to be continuously absent and also failed to avail the various opportunities of physical hearing, hearing through video conferencing, making written submissions etc. The counsel cited the ratio of the Supreme court in K.S.Panduranga v. State of Karnataka wherein it was held that when it was a deliberate attempt made by the counsel for the accused, the course adopted by the trial Court cannot be found fault with. 

He also contended that the application for recalling the witnesses has become final. The prayer of the appellant was allowed with a condition to deposit a sum of Rs. 50,00,000 which cannot be said to be a onerous condition. 

The court discussed the precedent in Mohd.Sukur Ali v. State of Assam which was cited by the appellants. In this case, the court had held that the court should not decide a criminal case in the absence of the counsel of the accused as an accused in a criminal case should not suffer for the fault of his counsel and the court should, in such a situation, must appoint another counsel as amicus curiae to defend the accused and further if the counsel does not appear deliberately, even then the court should not decide the appeal on merit. 

However, in K.S.Panduranga v. State of Karnataka, the Supreme Court had held that this decision in Mohd. Sukur Ali was in direct conflict with a larger bench decision in  Bani Singh v. State of U.P wherein it was held that the court was not bound to adjourn the matter due to absence of appellant/his counsel. However, the decision in these matters was only with respect to the Court proceeding in th ematter in case of deliberate absence of the counsel. In fact, the Court had specifically held that it was another thing to say that an Amicus curiae should have been appointed. 

The court observed the decision in Subedar v. State of Uttar Pradesh (2020) 17 SCC 765 where a three judge bench of the Supreme Court had held as under:

In case the advocate representing the cause of the accused, for one reason or the other was not available, it was open to the Court to appoint an Amicus Curiae to assist the Court but the cause in any case ought not to be allowed to go unrepresented.

Thus, the court was satisfied that the trial court had erred in not appointing an Amicus Curiae and passing the order without hearing the accused. 

With respect to recalling of witnesses, the court observed that the same had attained finality and thus, there was no question of permitting any recall application by the Court while remanding the matter. 

The court also directed the appellant/accused to be enlarged on bail pending fresh decision of the Trial Court. The court also gave liberty to the accused to settle the claims and compound the issue, if they were willing to do so.

Case Title: M/s.R.K.Emu Farms and others v. State Represented By Inspector of Police

Case No: CRL.A.No.295 of 2021

Citation: 2022 LiveLaw (Mad) 308

Counsel for the Appellants: Mr.M.Guruprasad

Counsel for the Respondents: Mr.S.Vinoth Kumar Government Advocate