The Jharkhand High Court recently comprising of a bench of Justice Anubha Rawat Chowdhary remarked that the Appellate court must appoint an Amicus to assist it in the disposal of appeal in Case of Non-appearance of appellant. (Ramesh Kumar v. State of Jharkhand)
The bench held that an appellate court is required to consider all the materials on record and arrive at findings and in case of non-appearance of the appellant, the appellate court ought to have at least appointed an amicus to assist the court from the side of the appellant in the disposal of the appeal.
Facts of the case
The petitioner has been convicted and sentenced by the learned Judicial Magistrate, 1st Class, Jamshedpur in a Case for the offence punishable under Section 304 A of the Indian Penal Code to undergo R.I. for one year and fine of Rs. 1,000/- and further sentenced to fine of Rs. 1,000/- for the offence punishable under Section 279 of the Indian Penal Code.
The bench noted, “Appellant take no step. In spite of repeated adjournment no one turned up on behalf of the appellant to argue the case. This case is running for hearing since 2008 and in spite of giving several opportunity no one turned up to argue the case. Argument on behalf of learned P.P has been heard. Put up on 23.5.2012 for judgment.”
Contention of the Parties
The counsel for the petitioner argued before the High Court that Learned counsel submitted that admittedly the appellant /petitioner was not heard by the appellate court and the case has been decided against the appellant/petitioner. Learned counsel has relied upon a judgment passed by the Hon’ble Supreme Court reported in (2011) 2 JLJR SC 102 (Md. Sukur Ali vs. State of Assam) and has referred to para 7 of the judgement and submitted that even if the counsel for the petitioner did not appear before the court for final argument of the appeal, the court ought to have appointed an amicus for disposal of the case. He further submitted that the appellate court is final court on facts and the assistance of a counsel representing the petitioner was required to be taken by the appellate court.
The learned counsel appearing on behalf of the opposite party State on the other hand is not in a position to dispute that the appellate court had decided the case in absence of the appellant/petitioner on account of non -appearance of his counsel on 18.05.2012 and the arguments of the State were concluded in his absence and the matter was posted for judgement. It was further not in dispute that no amicus as such has been appointed by the learned appellate court to assist the court on behalf of the appellant/petitioner for disposal of the case.
Learned counsel for the State submitted that the matter may be remanded back to the appellate authority for fresh hearing and disposal. He also submitted that a date may be fixed for appearance of the petitioner such that the case can be disposed of at the earliest. The learned counsel submitted that some time frame may also be given.
Courts Observation and Judgment
The Bench noted, "After hearing the learned counsel for the parties and considering the undisputed facts on record that the appellate court had heard the matter on 18.05.2012 in absence of counsel for the appellant/petitioner by recording that the case was running for hearing since 2008 and in spite of giving several opportunities, no one had turned up to argue the case of the appellant/petitioner."
The bench further noted that it is also an admitted fact on record that no amicus was appointed to assist the court on behalf of the appellant/petitioner in the matter of disposal of the appeal.
The bench remarked that it was also of the view that the appellate court was required to consider all the materials on record and in case of non-appearance of the appellant, the court ought to have at least appointed an amicus to assist it from the side of the appellant.
The bench relied on the Supreme Court's judgement in Mohd. Sukur Ali v. State of Assam, "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 High Court went on to set aside the impugned judgement passed in the criminal appeal in 2012, and sent the matter back to the appellate court for fresh consideration after giving an opportunity of hearing to the petitioner as well as the State.
The bench further remarked, "The parties are directed to appear before the court of learned Principal Sessions Judge, East Singhbhum, Jamshedpur, through their respective counsels on 13.09.2021 and argue their respective cases. The learned Appellate court is directed to expeditiously dispose of the appeal on its own merits within a period of one month thereafter".
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