Right of being Represented in a Court is a Fundamental Right under Article 21 of the Constitution.
Article 21 of the Constitution reads as under:
‘No person shall be deprived of his life or personal liberty except according to a procedure established by law’
Broadly speaking there are 3 types of litigations- Civil, Criminal & Fiscal but the life & personal liberty are at stake only in Criminal matters. Thus, an accused can resort to Article 21 of the Constitution if he is being deprived of his life or his personal liberty without following the due legal procedures. Deprivation of the established principles of Natural Justice in such cases also tantamount to abjudication of Article 21 of the Constitution.
In a catena of cases the Apex Court has held that the right of being represented through a counsel is part of due procedure clause and is blatant violation of the right to life & personal liberty guaranteed under Article 21 of the Constitution of India.
The Apex Court in Shaik Mukthar vs. State of Andhra Pradesh in Criminal Appeal No. 1753/2019 decided on February 04, 2020 following the dictum in Rakesh & Anr V. State of Madhya Pradesh, 2011(12) SCC 512 held that when an accused is unrepresented before a Court, it has to either appoint an Amicus curiae or to refer the matter to the Legal Services Committee requesting it to appoint an advocate.
Recently the Apex Court in Sakunthala vs. State in Criminal Appeal No. 474/ 2020 decided on July 8, 2020 following the decision of the Supreme Court in K. S. Panduranga v. State of Karnataka (2013) 3 SCC 721 held that an appeal against an order of conviction cannot be dismissed in default but must be taken up and decided on merits even if the appellant in-person or the counsel representing him, is not present.
The Apex Court in Shankar vs. State of Maharashtra on 23 July, 2019 in Criminal Appeal No.1106 OF 2019 following Mangat Singh vs.State of Punjab 2005 (11) SCC 185 held that the appeal filed by the accused against the conviction can be disposed of on merits only after hearing the appellant or his counsel. The Court held thus:
“Where the advocate for the appellant is absent on the date of hearing, the Court shall either appoint an amicus curiae and then decide the appeal. Once the appeal against the conviction is admitted, it is the duty of the Appellate Court either to appoint an advocate as amicus curiae or to nominate a counsel through Legal Services Authority and hear the matter on merits and then dispose of the appeal. When the appellant was not represented by the advocate, in our view, the High Court ought not to have decided the matter on merits and the impugned order is liable to be set aside and the matter is remitted back to the High Court.”
In a recent case in Subedar vs. State of Uttar Pradesh in Criminal AppealAL No.886 of 2020 decided by a three Judge Bench comprising of Justice Uday Umesh Lalit, Vineet Saran and S. Ravindra Bhat on 18 December 2020 reiterated the dictum propounded by the Apex Court earlier.
In this case the accused was convicted in a murder case. When the appeal came up for final hearing before the Allahabad High Court, though the cause list contained name of lawyers for the appellant-accused but none of them appeared in the Court. The bench considered the matter on merits and dismissed the appeal. The Apex Court did not approve of the procedure adopted by the High Court & set aside the impugned order of the High Court & remanded the matter for fresh hearing & held thus:
“It is well accepted that right of being represented through a counsel is part of due process clause and is referable to the right guaranteed under Article 21 of the Constitution of India. In case the Advocate representing the cause of the accused, for one reason or the other was not available, it was open to the Court to appoint an Amicus Curiae to assist the Court but the cause in any case ought not to be allowed to go unrepresented.”
Now a question arises that if Right to Property is being violated without any authority of law or there is imposition of Direct/Indirect Tax without following the due procedure or without the authority of law, then can these precedents be not followed? Are these cases limited to just criminal cases or they will have universal application as the valuable fundamental right of audience & representation cannot be violated in any case be it criminal, civil or fiscal. It is relevant that Article 265 of the Constitution of India provides that “no tax shall be levied or collected except by the authority of law”. Similarly Article 300A mandates that no person can be deprived of property save by authority of law. It is also important that though the right to property is no longer a fundamental right, the same continues to be an important constitutional right and in terms of Article 300-A, no person can be deprived of his property except by authority of law. Thus, the necessary corollary is that these precedents impliedly confer similar benefits to all cases irrespective of their class or type. The said view is fortified by innumerable decisions of the Apex Court wherein it has been held that right to representation & audience is violation of established principles of Natural Justice.
One of the fundamental principles of natural justice is ‘Audi alteram partem’, i.e., no man should be condemned unheard. The opportunity of hearing was to be given in consonance to principle of natural justice as held in Shridhar v. Nagar Palika, Jaunpur, AIR 1990 SC 307, Shrawan Kumar Jha v. State of Bihar, AIR 1991 (Suppl) (1) SC 330 & Basudeo Tiwary v. Sido Kanhu University and Ors., AIR 1998 Supreme Court 3261. It is earnestly hoped that all courts would abide by this view & act accordingly.
FULL TEXT OF THE SUPREME COURT JUDGEMENT
This appeal is filed questioning the judgment dated 20.03.2019 passed by the High Court of the State of Telangana at Hyderabad in Criminal Appeal No. 1140 of 2013 confirming the conviction of the appellants for the offence under Section 498A of the Indian Penal Code, 1860 (“IPC”) and sentencing the appellants to undergo imprisonment for two years. The Trial Court had sentenced to undergo imprisonment for three years.
We find from the judgment of the High Court that the appellants were not heard in the High Court. The appellants advocate remained absent on the date of hearing. The appellants should not have been penalized for the same.
It is by now well settled by a catena of judgments such as the decision of this Court in Rakesh & Anr V. State of Madhya Pradesh, 2011(12) SCC 512, that it is in the interest of justice to appoint an amicus curiae to assist the court where the accused is unrepresented. The Court may also refer the matter to the Legal Services Committee, which may appoint an advocate to represent the accused. The High Court, unfortunately, has not chosen to either appoint an Amicus curiae or to refer the matter to the Legal Services Committee requesting it to appoint an advocate. Hence, the matter is fit to be remitted to the High Court.
However, we have chosen to appreciate the evidence placed on record having regard to the fact that the incident occurred in the year 2011 and that the accused have been in custody for about 8 months.
It is relevant to note that Accused No. 1, the husband of the deceased, was charged separately under Section 302 of the IPC, and was convicted by the Trial Court as well as the High Court. He has not questioned the judgment of conviction and consequently is undergoing sentence of life imprisonment.
The prosecution mainly relies upon the evidence of PW-1 to PW-5 to prove that the appellants have committed the offence punishable under Section 498A of the IPC. We have carefully perused the evidence of PW-1 to PW-5 in detail. Though in his examination-in-chief, PW-1 has deposed against these appellants, in the cross-examination, he admits that Accused No. 2, Appellant No. 1 herein, was married much prior to the marriage of the deceased with Accused No. 1 and was residing separately. He has two houses at Chandoor. The mother of Accused No. 2 also resides in an old house situated near the house of Accused No. 1. Accused No. 3, the sister of Accused No. 1, Appellant No. 2 herein, was also married. PW-2, PW-3 and PW-4 have not deposed anything as against the appellants herein. Thus, virtually, the evidence of PW-1 to PW-4 does not support the case of the prosecution so far as the appellants herein are concerned. However, PW-5, the minor son of the deceased and Accused No. 1 has specifically deposed that the Appellants herein also used to harass and beat the deceased. He also admits that Accused No. 2 (Appellant No. 1 herein) is residing in his house independently in the old locality of Chandoor. We are conscious of the well settled proposition that the evidence of a minor, particularly when he is the sole witness, has to be scrutinized by the Court very carefully.
Be that as it may, since PW-5 had deposed certain facts against the appellants and has withstood the test of cross-examination, in our considered opinion, the High Court was justified in maintaining the conviction as against the appellants for the offence punishable under Section 498A of the IPC. However, having regard to the entire material on record as well as under the facts and circumstances of this case, we are of the considered view that the interest of justice will be met in case the sentence imposed upon these appellants is reduced to the period already undergone. We have taken into consideration the fact that Accused No. 2 (Appellant No. 1 herein) was living in a separate house in a different area along with his aged mother. Accused No. 3 (Appellant No. 2 herein) was also a married sister.
The appeal is, therefore, allowed in part. The conviction of the appellants for the offence punishable under Section 498A of the IPC is maintained. However, the sentence is reduced to the period already undergone. Since the appellants are in custody, they shall be released forthwith if not required in any other case.