The Apex Court in a in a recent decision has ruled that it the appeal/revision/writ of a litigant cannot be dismissed if the lawyer of the litigant it is not present in the court due to any reason whatsoever. The Court ruled on 16th November 2020 in the case of Parveen V. State of Haryana in SLP (Crl.) Nos.4292-4293/2020 that in such a case the court should appoint ‘amicus curiae’ so that the litigant does not suffer from the mistake of his lawyer. The court allowed the writ petition against the orders of the Punjab and Haryana High Court dismissing the the writ petition of the petitioner on the ground that his lawyer was not present in the court on multiple earlier occasions. The Apex Court held that ‘Liberty Can’t be Taken Away in This Manner’.
The Punjab & Haryana High Court had dismissed the plea filed by the man challenging his conviction saying that perusal of file shows that the revision has been taken on board six times where on four occasions, none had come forward to represent the petitioner. The High Court was irked that his lawyer had remained absent on four occasions during the hearing. The Apex Court observed that the High Court was manifestly wrong in rejecting the revision in default and it ought to have appointed another lawyer as amicus curiae to assist it in the matter which pertained to conviction under the Arms Act. The Apex court allowed the appeal filed by the man and set aside the orders of the High Court passed on February 11 & July 16, 2020.
On February 11, the High Court had dismissed the plea filed by the person challenging his conviction holding that it can safely be inferred that petitioner or his counsel is no more interested in pursuing this revision & therefore dismissed the same for want of prosecution. Later, on July 16, the High Court had dismissed the application for restoration saying that no grounds for restoration were made out.
It is true that the judgment has been passed by the Apex Court in criminal proceedings where the liberty of a person was held supreme and could not be sacrificed just because his lawyer did not turn up in the court. On the same analogy, in taxation proceedings & also in civil matters, a petitioner/appellant cannot be penalised for failure on the part of his lawyer to appear in the court on the date fixed for any reason whatsoever. After all fiscal or civil rights are in no way inferior to right to Liberty and a litigant seeking indulgence of the court cannot be denied justice just because his lawyer did not attend the proceedings in the court. It would be gross failure of justice if valuable civil or fiscal rights are crucified at the altar of procedural snags. In such cases, the courts should give the litigant another chance by either issuing a personal notice to show cause why the matter be not decided against him or appoint an amicus curiae so that substantial justice is done by the Courts. Principles of Natural Justice warrant that justice should ultimately prevail and no one should be punished unheard- no rights extinguished by passing one line orders- “ Case called out. None appears-dismissed”.
It is common knowledge that lawyers are busy and have many cases in different courts. They may be stuck up in one court while the matter reaches in another court. Sometimes they miss locating their case in the cause list. Sometimes they are unwell or late. Absence of the lawyer in Court could be inadvertent. How can the client suffer due to latches on the part of his lawyer? More importantly, how can the client be held responsible for the misconduct of the lawyer? How can orders prejudicial to his interest and detrimental to his rights to liberty, civil & fiscal be thrust on him for no fault of his.
This calls for legislative changes/judicial reforms wherein in case of absentee lawyers, another lawyer should be appointed to go through the pleadings & documents and argue the case for the absentee advocate so that all orders are passed on merits and the ends of justice are met. One suggestion is to make it mandatory for a litigant to get his mobile number & email registered at the outset of litigation so that all notices, proceedings and orders are, with technical IT support, are automatically messaged/mailed to him so that he is abreast of the proceedings in the Court. This will usher a new era where principles of Natural Justice would prevail and real & substantial justice would be delivered.
FULL TEXT OF THE SUPREME COURT JUDGEMENT
1. Leave granted.
2. By a judgment dated 12 January 2015, the appellant has been convicted for an offence under Section 25 of the Arms Act by the Judicial Magistrate First Class, Rohtak in Criminal Case No 85-2 of 2013 and has been sentenced to suffer simple imprisonment for a period of three years.
3. Criminal Appeal No 24 of 2015 was filed against the judgment of conviction before the Additional District and Sessions Judge, Rohtak. During the pendency of the appeal, the appellant was admitted to bail. The Additional Sessions Judge upheld the conviction while dismissing the appeal on 10 July 2017.
4. The appellant filed a revision, CRR No 1316 of 2018, before the High Court of Punjab & Haryana. During the pendency of the revision, the appellant was enlarged on bail on 16 April 2018. The revision was filed before the High Court through the Legal Services Authority, Rohtak. The High Court by its order dated 11 February 2020, dismissed the revision in the absence of the appellant and his advocate, observing as follows:
“Perusal of file shows that this revision has been taken on board six times, including today. On four occasions, none came forward to represent the petitioner in the span of approximately one year and four months. Therefore, it can safely be inferred that petitioner or his counsel is no more interested in pursuing this revision.
Dismissed for want of prosecution.
Learned Chief Judicial Magistrate, Rohtak, is directed to issue warrants of arrest of the petitioner to undergo remaining sentence.
A copy of this order be sent to learned Chief Judicial Magistrate, Rohtak, for compliance.”
5. On 16 July 2020, the High Court dismissed the application for restoration of the revision on the ground that no ground for restoration has been established.
6. Notice was issued by this Court on 12 October 2020. In pursuance of the notice, Mr Vishal Mahajan, learned Additional Advocate General for the State of Haryana has appeared on behalf of the first respondent – State.
7. The High Court, in our view, was manifestly in error in rejecting the revision in default, on the ground that the appellant’s advocate had remained absent on the previous four occasions. Since the revision before the High Court arose out of an order of the conviction under the Arms Act, the High Court ought to have appointed an Amicus Curiae in the absence of counsel, who has been engaged by the Legal Services Authority, Rohtak. The liberty of a citizen cannot be taken away in this manner.
8. In the circumstances, we are of the view that it would be appropriate to allow this appeal and set aside the impugned orders of the High Court dated 11 February 2020 and 16 July 2020. CRR No 1316 of 2018 is restored to the file of the High Court. Since during the pendency of the Special Leave Petition, the appellant was admitted to bail by this court and the appellant was on bail during the pendency of the revision before the High Court, the order enlarging the appellant on bail shall continue to remain in operation pending the disposal of the revision by the High Court. The appellant shall cooperate in the disposal of the revision.
9. The appeals are accordingly disposed of.
10. Pending applications, if any, stand disposed of.