2008 JTR(SC) 1425
2009 75 AIC 205 ; 2008 4 AICLR 719 ; 2009 1 AIR(Jhar)(R) 654 ; 2008 Supp AIR(SC) 593 ; 2008 AIR(SCW) 6413 ; 2009 64 AllCriC 412 ; 2008 2 ANJ(SC) 354 ; 2009 1 BBCJ(SC) 293 ; 2008 2 CalLJ(SC) 281 ; 2008 4 CriCC 613 ; 2008 CriLR 802 ; 2009 1 GLH 180 ; 2008 10 JT 520 ; 2008 4 RCR(Cri) 551 ; 2008 12 Scale 811 ; 2008 9 SCC 542 ; 2008 3 SCC(Cri) 828 ; 2008 3 ShimLC 266 ; 2008 KHC 4998 ; 2008 6 Supreme 751
2008(6) Supreme 751
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.
Man Singh & Anr. — Appellants
versus
State of M.P. — Respondent
Criminal Appeal No. 1516 of 2008
(Arising out of S.L.P. (Crl.) No. 5051 of 2007)
Decided on : 24-09-2008
Important Point
When the counsel appointed by Legal Aid Committee did not appear the High Court, instead of dismissing the case, should have required the Committee to appoint another counsel.
(A) The appeal pertains to a conviction under Sections 8/18(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and alternative charges under Sections 8/29/18(b), 8/21(c), 8/29/21(c), and 8/28/2(c) of the Act, with a sentence of 20 years rigorous imprisonment and a fine, the severity of the charges mandating robust legal representation. The High Court, however, proceeded with the disposal of the appeal despite the absence of the counsel appointed by the Legal Aid Committee, which directly engages with the safeguards under the Act ensuring a fair trial through competent defence representation, especially where the accuseds liberty and substantial penalties are at stake and the States case relies on official witnesses.
(B) Key legal principles include the right to legal defence as part of a fair trial, the duty of the court to ensure proper representation when relying on Legal Aid appointments, and the necessity of not proceeding with disposal in the absence of assigned counsel in serious criminal matters.
Facts of the case:
The appellant was convicted for offences involving narcotics, with the case relying on evidence from official witnesses (PWs 9 and 10). The High Court dismissed the appeal after the appointed Legal Aid counsel failed to appear, proceeding with a Panel Lawyer for the respondent-State instead.
Findings of Court:
The High Court erred in dismissing the appeal without ensuring that the Legal Aid counsel was present or appointing an alternative counsel or Amicus Curiae, especially given the serious nature of the charges and the potential sentence.
Issues:
Whether the High Court was justified in disposing of the appeal in the absence of the legally aided counsel, and whether the failure to appoint another counsel or Amicus Curiae violated the principles of fair hearing.
Ratio Decidendi:
When the legally appointed counsel does not appear, the court must ensure replacement or adjourn the matter, particularly where the offence is grave and the consequences for the accused are severe; proceeding otherwise undermines the right to defence.
Result:
The appeal is allowed and the matter is remitted to the High Court for a fresh hearing with proper representation.
(A) The appeal pertains to a conviction under Sections 8/18(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and alternative charges under Sections 8/29/18(b), 8/21(c), 8/29/21(c), and 8/28/2(c) of the Act, with a sentence of 20 years rigorous imprisonment and a fine, the severity of the charges mandating robust legal representation. The High Court, however, proceeded with the disposal of the appeal despite the absence of the counsel appointed by the Legal Aid Committee, which directly engages with the safeguards under the Act ensuring a fair trial through competent defence representation, especially where the accuseds liberty and substantial penalties are at stake and the States case relies on official witnesses.
(B) Key legal principles include the right to legal defence as part of a fair trial, the duty of the court to ensure proper representation when relying on Legal Aid appointments, and the necessity of not proceeding with disposal in the absence of assigned counsel in serious criminal matters.
Facts of the case:
The appellant was convicted for offences involving narcotics, with the case relying on evidence from official witnesses (PWs 9 and 10). The High Court dismissed the appeal after the appointed Legal Aid counsel failed to appear, proceeding with a Panel Lawyer for the respondent-State instead.
Findings of Court:
The High Court erred in dismissing the appeal without ensuring that the Legal Aid counsel was present or appointing an alternative counsel or Amicus Curiae, especially given the serious nature of the charges and the potential sentence.
Issues:
Whether the High Court was justified in disposing of the appeal in the absence of the legally aided counsel, and whether the failure to appoint another counsel or Amicus Curiae violated the principles of fair hearing.
Ratio Decidendi:
When the legally appointed counsel does not appear, the court must ensure replacement or adjourn the matter, particularly where the offence is grave and the consequences for the accused are severe; proceeding otherwise undermines the right to defence.
Result:
The appeal is allowed and the matter is remitted to the High Court for a fresh hearing with proper representation.
For the Appellant :Ashok Kumar Sharma, Sanjay Misra, Avinash Kumar Jain and Yogesh, Advocates.
For the Respondent:C.D. Singh, Sunny Chowdhary, Vairagya Vardhan and Aditya Singh, Advocates.
Judgment
Dr. Arijit Pasayat, J. —
1. Leave granted.
2. Challenge in this appeal is to the Judgment of a learned Single Judge of the High Court of Madhya Pradesh, Jabalpur, Bench at Indore, dismissing the appeal filed by the appellant who had questioned his conviction for offence punishable under Section 8/18(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for short ‘the Act’) and in the alternative under Section 8/29/18(b) of the Act and under Section 8/21(c) and in the alternative 8/29/21(c) and in the alternative 8/28/2(c) of the Act and sentence of 20 years RI and fine of rupees two lakhs with a stipulation that in the event of default of payment of fine each of the accused/appellants would suffer RI for 5 years. It appears that when the matter was taken up by the High Court learned Advocate who was appointed through Legal Aid Committee did not appear. Learned Single Judge heard the matter with the assistance of the learned Panel Lawyer for the respondent-State.
3. Learned counsel for the appellant submitted that the lawyer who was appointed by the Legal Aid Committee did not appear, when the matter was called, for the reasons best known to him and the High Court should not have dismissed the appeal without engaging another counsel or at least without appointing an Amicus Curiae. Learned counsel for the respondent-State on the other hand submitted that the High Court has analysed the relevant evidence including the evidence of PWs 9 and 10, who were the official witnesses. It is pointed out that Sections 42 and 50 of the Act have no relevance because the alleged seizure took place in a public place and search was not of person.
4. We need not deal with the merits of the case as we find that the learned counsel appointed by the Legal Aid Committee did not appear on the date fixed before the High Court. The High Court could have in such circumstances required the Legal Aid Committee to appoint another counsel. Considering the seriousness of the offence it would have been appropriate for the High Court to do so.
5. In the circumstances, we set aside the impugned Order and remit the matter to the High Court for a fresh hearing.
6. The appeal is allowed.
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