Jhar HC | Can a criminal case be decided ex-parte? What is the resort in cases of non-appearance of counsel of the accused? HC answers

Jharkhand High Court

Jharkhand High Court: Anubha Rawat Choudhary, J., set aside the order of conviction under Section 304A of IPC passed without hearing the accused. The Bench stated that in case of non-appearance of counsel for the accused it is the duty of the Court to appoint another counsel as amicus curiae to defend the accused.

The petitioner had been convicted and sentenced by the Judicial Magistrate for the offence punishable under Section304 A of the Penal Code, 1860 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 petitioner submitted that he was not heard by the Appellate Court due to the non-appearance of his counsel and the case had been decided against the petitioner, as evident from the order of Appellate Court:

Appellant takes 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.”

The petitioner contended 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.

Observing that the case had been decided in absence of the appellant/petitioner on account of non-appearance of his counsel, the arguments of the State were concluded in his absence and that no amicus had been appointed by the Appellate Court to assist the Court on behalf of the appellant/petitioner for disposal of the case, the Court opined that 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.

In Md. Sukur Ali v. State of Assam, (2011) 4 SCC 729, the Supreme Court had opined 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.”

Considering the aforesaid facts and circumstances, the Court set aside the impugned judgment passed by the Appellate Court and the matter was remanded back to the Appellate Court for reconsideration.[Ramesh Kumar v. State of Jharkhand, 2021 SCC OnLine Jhar 565, decided on 17-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Senior Advocate B.M. Tripathy and Advocate Naveen Kumar Jaiswal

For the State: A.P.P. P.D. Agarwal

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