NEW DELHI: Judiciary cannot decide a case if an accused is not represented by a counsel, the Supreme Court has ruled in an important judgement.
There have been instances when lawyers have been branded for taking up cases, like during Kasab's trial and Jessica Lal case. The bar council in Srinagar too prevented its members from representing those accused in a s*x racket case, not long ago.
The Supreme Court asked courts across the country to appoint amicus curiae to provide legal assistance to accused persons before deciding criminal cases.
"In our opinion, a criminal case should not be decided against the accused in the absence of a counsel," said a bench comprising Justices Markandey Katju and Gyan Sudha Misra. The bench set aside the order of the Guwahati High Court, which had upheld the conviction of an accused without hearing the plea of his counsel.
"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," the apex court said.
If a counsel who did not appear on the previous date appears but cannot give satisfactory explanation for his absence, he will be precluded from appearing and arguing the case on behalf of the accused. 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, the bench ordered.
The court zeroed in on the constitutional provision providing for legal assistance to the accused in a criminal case. "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 of all the Fundamental Rights guaranteed by the constitution," the apex court bench said. The Supreme Court had appointed constitutional lawyer Fali S Nariman as amicus curiae to decide the issue in which important constitutional and legal questions were involved.
Nariman had told the court that the counsel for the accused was AS Choudhury. But later the accused changed his counsel. However, the name of the changed counsel did not appear in the cause list and high court decided the case. "
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," said the apex court in its order.
It asked the high court to decide the case afresh. A bench of the high court other than that which had passed the order against the accused will now hear the case, it added.