REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  546       OF 2011 (arising out of S.L.P. (CRL.) No(s).679 of 2011)

MD.SUKUR ALI                                  Appellant(s)

                VERSUS

STATE OF ASSAM                               Respondent(s)

O  R  D  E  R

Leave granted.

Heard learned counsel for the parties.

We have also heard Mr. Fali S. Nariman, learned senior  

counsel, who very kindly consented to assist us as Amicus  

Curiae  in this case in which an important constitutional  

and legal question is involved.

That question is whether 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 ?

In the present case, it appears that Criminal Appeal  

137 of 2003  was  decided  by   the  Gauhati High  Court on

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01.06.2010 in the absence of the counsel for the appellant-

accused and the conviction was upheld.

Mr. Nariman, learned senior counsel, pointed out that  

earlier  the  counsel  for  the  appellant-accused  was  

Mr. A.S. Choudhury but the appellant changed his counsel  

and appointed Mr. B. Sinha in the year 2007 as his new  

counsel,  and  this  fact  is  corroborated  by  affidavit.  

Unfortunately, the name of Mr. Sinha as counsel for the  

appellant was not shown in the cause list when the case was  

listed and the name of the former counsel Mr. Choudhury was  

shown.  In these circumstances, Mr. Sinha who was engaged  

by the appellant as his new counsel did not appear.

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

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Constitution.  Article 21 can be said to be the 'heart and  

soul' of the fundamental rights.

In our opinion, a criminal case should not be decided  

against the accused in the absence of a counsel. We are  

fortified in the view we are taking by a decision of the US  

Supreme Court in Powell  Vs.  Alabama,  287 US 45 (1932),  

in which it was observed :-

“What,  then,  does  a  hearing  include?  Historically and in practice, in our own country  at least, it has always included the right to the  aid of counsel when desired and provided by the  party asserting the right.  The right to be heard  would be, in many cases, of little avail if it  did  not  comprehend  the  right  to  be  heard  by  counsel. Even the intelligent and educated layman  has small and sometimes no skill in the science  of law. If charged with crime, he is incapable,  generally, of determining for himself whether the  indictment is good or bad. He is unfamiliar with  the rules of evidence.  Left without the aid of  counsel he may be put on trial without a proper  charge, and convicted upon incompetent evidence,  or evidence irrelevant to the issue or otherwise  inadmissible.  He  lacks  both  the  skill  and  knowledge adequately to prepare his defense, even  though he have a perfect one. He requires the  guiding  hand  of  counsel  at  every  step  in  the  proceedings against him.  Without it, though he  be not guilty, he faces the danger of conviction  because he does not know how to establish his  innocence.  If  that  be  true  of  men  of  intelligence, how much more true is it of the  ignorant  and  illiterate,  or  those  of  feeble  intellect. If in any case, civil or criminal, a  State or federal court were arbitrarily to refuse  to  hear  a  party  by  counsel,  employed  by  and  appearing  for  him,  it  reasonably  may  not  be  doubted that such a refusal would be a denial of  a hearing, and, therefore, of due process in the  constitutional sense”.

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The above decision of the US Supreme Court was cited  

with approval by this Court in  A.S. Mohammed Rafi  Vs.  

State of Tamil Nadu & Ors.,  AIR 2011 Supreme Court 308,  

vide para 24.

A similar view which we are taking here was also taken  

by  this  Court  in  Man  Singh  &  Anr. Vs.  State  of  Madhya  

Pradesh (2008) 9 SCC 542, and in Bapu Limbaji Kamble  Vs.  

State of Maharashtra, (2005) 11 SC 412.

In this connection we may also refer to Articles 21 and  

22(1) of the Constitution.  Articles 21 and Articles 22(1)  

are as under :

“Article  21.  Protection of  life and  personal  liberty. – No person shall be deprived of his  life  or  personal  liberty  except  according  to  procedure established by law”.

Article  22(1).   Protection  against  arrest  and  detention in certain cases. – (1)  No person who  is arrested shall be detained in custody without  being informed, as soon as may be, of the grounds  for such arrest nor shall he be denied the right  to  consult,  and  to  be  defended  by,  a  legal  practitioner of his choice.”

In Maneka Gandhi vs. Union of India AIR 1978 SC 597,  

it has been held by a Constitution Bench of this Court that  

the procedure for depriving a person of his life or liberty  

should be fair, reasonable and just. We are of the  opinion

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that it is not fair or just that a criminal case should be  

decided against an accused in the absence of a counsel.  It  

is  only  a  lawyer  who  is  conversant  with  law  who  can  

properly defend an accused in a criminal case.  Hence, in  

our  opinion,  if  a  criminal  case  (whether  a  trial  or  

appeal/revision)  is  decided  against  an  accused  in  the  

absence of a counsel, there will be violation of Article 21  

of the Constitution.

The  right  to  appear  through  counsel  has  existed  in  

England for over three centuries.  In ancient Rome there  

were great lawyers e,g, Cicero, Scaevola,   Crassus, etc.  

who defended the accused.  In fact the higher the human  

race  has  progressed  in  civilization,  the  clearer  and  

stronger has that right appeared, and the more firmly has  

it been held and asserted.  Even in the Nuremberg trials  

the Nazi war criminals, responsible for killing millions of  

persons, were yet provided counsel.  Therefore when we say  

that  the  accused  should  be  provided  counsel  we  are  not  

bringing  into  existence  a  new  principle  but  simply  

recognizing what already existed and which civilized people  

have long enjoyed.  

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Apart from the above, we agree with the eminent jurist  

Seervai who has said in his “Constitutional Law of India’,  

Third Edition, Vol. I, Pg. 857:-

“The right to be defended by counsel  does  

not appear to have been stressed, and was clearly  

not  considered  in  any  detail  in  Ajaib  Singh’s  

case (1953) SCR 254.  But the right of a person  

accused  of  an  offence,  or  against  whom  any  

proceedings  were  taken  under  the  Cr.P.C.  is  a  

valuable right which was recognized by Section  

340 Cr.P.C.  Article 22 (1) on its language makes  

that  right  a  constitutional  right,  and  unless  

there  are  compelling  reasons,  Article  22  (1)  

ought  not  to  be  cut  down  by  judicial  

construction........ It is submitted that Article  

22 (1) makes the statutory right under Section  

340 Cr.P.C.  a Constitutional right in respect of  

criminal or quasi-criminal proceedings.”

We are fully in agreement with Mr. Seervai regarding  

his  above  observations.   The  Founding  Fathers  of  our  

Constitution  were themselves freedom fighters who had seen  

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civil liberties of our people trampled under foreign rule,  

and who had themselves been incarcerated for long period  

under the formula  ‘Na vakeel, na daleel, na appeal’ (No  

lawyer, no hearing, no appeal).  Many of them were lawyers  

by  profession,  and  knew  the  importance  of  counsel,  

particularly in criminal cases.  It was for this reason  

that they provided for assistance by counsel under Article  

22  (1),  and  that  provision  must  be  given  the  widest  

construction to effectuate the intention of the Founding  

Fathers.

In this connection, we may also refer to the ringing  

speech  of   Rt.  Hon.  Srinivasa  Sastri,  speaking  in  the  

Imperial Legislative Council, at the introduction of the  

Rowlatt  Bill,  Feb  7,  1919  (the  Rowlatt  Act  prohibited  

counsels  to  appear  for  the  accused  in  cases  under  the  

Act):-

"When Government undertakes a repressive policy,  the innocent are not safe. Men like me would not  be considered innocent. The innocent then is he  who forswears politics, who takes no part in the  public movements of the times, who retires into  his house, mumbles his prayers, pays his taxes,  and  salaams  all  the  government  officials  all  round. The man who interferes in politics, the  man  who  goes  about  collecting  money  for  any  public  purpose,  the  man who addresses a public  

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meeting, then becomes a suspect. I am always on  the  borderland  and  I,  therefore,  for  personal  reasons, if for nothing else, undertake to say  that  the  possession,  in  the  hands  of  the  Executive, of powers of this drastic nature will  not hurt only the wicked. It will hurt the good  as well as the bad, and there will be such a  lowering of public spirit, there will be such a  lowering of the political tone in the country,  that all your talk of responsible government will  be mere mockery...

"Much  better  that  a  few  rascals  should  walk  abroad than that the honest man should be obliged  for fear of the law of the land to remain shut up  in  his  house,  to  refrain  from  the  activities  which  it  is  in  his  nature  to  indulge  in,  to  abstain from all political and public work merely  because there is a dreadful law in the land."

In  Gideon vs   Wainwright,  372  US  335  (1963)  

Mr. Justice Hugo Black of the US Supreme Court delivering  

the unanimous judgment of the Court observed:-  

“Lawyers  in  criminal  courts  are  necessities,  not  luxuries”

In  Brewer vs  William, 430 US 387 (1977) Mr  Justice  

Stewart  delivering  the  opinion  of  the  US  Supreme  Court  

observed;-

“The  pressures  on  state  executive  and  judicial officers charged with the administration  of  the  criminal  law  are  great.   But  it  is  precisely the predictability of those pressures  that makes imperative a resolute loyalty to the  guarantees that the Constitution extends to us  all. ” :8:

For the reasons stated above, we allow this Appeal,  

set  aside  the  impugned  judgment  of  the  High  Court  and  

remand the matter to the High Court for a fresh decision  

after hearing Mr. Sinha, the new learned counsel for the  

appellant in the High Court, or any other counsel which has  

been engaged by the appellant, or in the absence of these,  

an  amicus curiae being a lawyer practising on the criminal  

side.

The case shall be heard by a Bench of Judges other  

than those who passed the impugned judgment.

The  Order  dated  24.01.2011  passed  by  this  Court  

granting  bail  to  the  appellant  shall  continue  till  the  

appeal is decided by the High Court.

We reiterate that 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

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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.  

......................J.  (MARKANDEY KATJU)

.......................J.          (GYAN SUDHA MISRA) NEW DELHI; FEBRUARY 24, 2011.

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