MD. SUKUR ALIversusSTATE OF ASSAM

                     [2011] 3 S.C.R. 209


                      MD. SUKUR ALI                               A
                              v.
                    STATE OF ASSAM
             (Criminal Appeal No.546 of 2011}
                    FEBRUARY 24, 2011
                                                                  B
[MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.]

     Administration of criminal justice: Right to be defended
by counsel - Held: A criminal case should not be decided
against the accused in the absence of a counsel - It is only      C
a counsel who is conversant with law who can properly defend
an accused in a criminal case - Adjudication of a criminal
case (whether a tn"al or appeal/revision) against an accused
in the absence of a counsel would be violative of Article 21
of the Constitution - In the absence of a counsel, for whatever   D
reasons, the case should not be decided forthwith against the
accused but in such a situation, the court should appoint a
counsel who is practicing on the criminal side as amicus
curiae and decide the case after fixing another date and after
hearing him - Constitution of India, 1950 - Article 21.           E

     A. S. Mohammed Rafi vs. State of Tamil Nadu & Ors. AIR
2011 SC 308; Man Singh & Anr. vs. State of Madhya
Pradesh (2008) 9 SCC 542; Bapu Limbaji Kamble vs. State
of Maharashtra (2005) 11 SC 412; Maneka Gandhi vs. Union
of India AIR 1978 SC 597 - Relied on                              F
    Powell vs. Alabama, 287 US 45 (1932}; Gideon vs.
Wainwright 372 US 335 (1963); Brewer vs. William 430 US
387 (1977) ..... Referred to
                                                                  G
    Constitutional Law of India, Third Edition by Jurist
Seervai - Referred to



                             209                                  H
    210        SUPREME COURT REPORTS                [2011] 3 S.C.R.


A                          Case Law Reference:

          AIR 2011 SC 308           Relied on              Para 9

          (2008) 9 sec 542          Relied on              Para 10

          (2005) 11 SC 412          Relied on              Para 10
B
          AIR 1978 SC 597           Relied on              Para 12

          287 us 45 (1932)          Referred to            Para 8

          372 us 335 (1963)         Referred to            Para 17
c
          430 us 387 (1977)         Referred to            Para 18

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 546 of 2011.

D       From the Judgment & Order dated 01.06.2010 of the High
    Court of Guwahati, Assam in Criminal Appeal No. 137 of 2003.

      Fail S. Nariman, Azim H. Laskar. Bekash Kar Gupta,
  Abhijit Sengupta, Avijit Roy, Vartika Sahay (for Corporate Law
E Group) for the appearing parties.

          The following order of the Court was delivered

                                ORDER

          1. Leave granted.
F
          2. Heard learned counsel for the parties.

       3. We have also heard Mr. Fali S. Nariman, learned senior
  counsel, who very kindly consented to assist us as Amicus
G Curiae in this case in which an important constitutional and legal.
  question is involved.

          4. 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
H
        MD. SUKUR ALI v. STATE OF ASSAM                        211


accused, or the Court should appoint an amicus curiae to              A
defend the accused ?

     5. In the present case, it appears that Criminal Appeal 137
of 2003 was decided by the Gauhati High Court on 01.06.2010
in the absence of the counsel for the appellant- accused and
                                                                      B
the conviction was upheld.

     6. 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,           C
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
courisel Mr. Choudhury was shown. In these circumstances, Mr.
Sinha who was engaged by the appellant as his new counsel             o
did not appear.

     7. 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          E
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     F
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.
                                                                      G
     8. 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 :-                                              H
    212        SUPREME COURT REPORTS                    [2011] 3 S.C.R.


A         "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
B         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
c         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
D         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.
E         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".
F
         9. 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.
G        10. 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 Kamb/e Vs.
    State of Maharashtra, (2005) 11 SC 412.

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         MD. SUKUR ALI v. STATE OF ASSAM                     213


    11. In this connection we may also refer to Articles 21 and      A
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        8
     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          C
     denied the right to consult, and to be defended by, a legal
     practitioner of his choice."

      12. In Maneka Gandhi vs. Union of India AIR 1978 SC
597, it has been held by a Constitution Bench of this Court that     o
the procedure for depriving a person of his life or liberty should
be fair, reasonable and just. We are of the opinion 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          E
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.

      13. The right to appear through counsel has existed in F
 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. G
 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 H
    214        SUPREME COURT REPORTS                   [2011) 3 S.C.R.


A civilized people have long enjoyed.

         14. 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:-
B               "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
c         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
D         (1) makes the statutory right under Section 340 Cr.P.C. a
          Constitutional right in respect of criminal or quasi-criminal
          proceedings."

         15. We are fully in agreement with Mr. Seervai regarding
E his above observations. The Founding Fathers of our
  Constitution were themselves freedom fighters who had seen
  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,
F 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.
G
       16. 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
H accused in cases under the Act):-
        MD. SUKUR ALI v. STATE OF ASSAM                          215


    "When Government undertakes a repressive policy, the                 A
    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             B
    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 meeting,
    then becomes a suspect. I am always on the borderland
    and I, therefore, for personal reasons, if for nothing else,         c
    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
                                                                         0
    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   E
    from all political and public work merely because there is
    a dreadful law in the land."

     17. In Gideon vs Wainwright, 372 US 335 (1963) Mr.
Justice Hugo Black of the US Supreme Court delivering the                F
unanimous judgment of the Court observed:-

    "Lawyers in criminal courts are necessities, not luxuries"

    18. In Brewer vs William, 430 US 387 (1977) Mr Justice
Stewart delivering the opinion of the US Supreme Court                   G
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           H
        216        SUPREME COURT REPORTS              [2011] 3 S.C.R.


    A          pressures that makes imperative a resolute loyalty to the
               guarantees that the Constitution extends to us all."

             19. 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
    8
        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.

    C        20. The case shall be heard by a Bench of Judges other
        than those who passed the impugned judgment.

          21. The Order dated 24.01.2011 passed by this Court
      granting bail to the appellant shall continue till the appeal is
    0 decided by the High Court.
           22. 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
    E amicus curiae and decide the case after fixing another date and
      hearing him.

           23. If on the next date of hearing the counsel, who ought
      to have appeared on the previous date but did not appear, now
    F appears, but cannot show sufficient cause for his non-
      appearance on the earlier date, then he will be 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
    G the case by the counsel appointed as amicus curiae.

        D.G.                                           Appeal allowed.