Supreme Court: Procedure the appellate court should follow if they appoints amicus in any criminal appeal

 Having regard to the dictum of the three-Judge Bench in

Anokhi Lal (supra) and in order to curb the tendency of convicts to

raise technical pleas of the nature which were advanced before us,

we observe that, henceforth, whenever an appellate court considers

it desirable to appoint an amicus to represent a convict whose

counsel is absent, such court may also consider the desirability of

issuing a notice from the registry to the address of the convict

mentioned in the memorandum of appeal, for such notice to be

served on him through the jurisdictional police station, with an

intimation that the convict may contact the learned amicus and

provide him necessary instructions so that his case is argued before

the court effectively and meaningfully. In the event the convict

contacts the amicus and provides instructions, there would

ordinarily be no impediment in proceeding with hearing of the

appeal. If, indeed, the convict desires to have his own counsel argue

the appeal on his behalf and not the amicus, the court may hear

such counsel in addition to the amicus. However, if the service

report indicates that the convict was not found at the address or

that he refused to accept notice despite being present, it would

amount to sufficient compliance if the notice is pasted on the outer

wall of the premises, address whereof is mentioned in the cause title

of the memorandum of appeal. Should the convict still remain

dormant, and it is so reported, the High Court may proceed to

decide the appeal without waiting for the convict to turn up either in

person or through the counsel of his choice engaged by him. This

process, in our view, would substantially serve the purpose of

eliminating any plea of unfairness being raised before this Court if

an appeal is disposed of upon hearing the amicus appointed by the

court. Additionally, in a case of like nature where the appeal is listed two decades after grant of bail, this process would ensure obtaining of information as to whether the appeal survives for decision or stands abated.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2026

BHOLA MAHTO   VS. THE STATE OF JHARKHAND 

Citation: 2026 INSC 257 .

Read full judgment here: Click here.

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Whether session court can decide criminal appeal or criminal revision in absence of accused?

 Sessions courts in India have specific limitations regarding deciding criminal appeals and revisions in the absence of the accused, with established legal principles that prioritize fair trial and due process.

General Principle Against Deciding in Absence

Criminal cases, whether trials, appeals, or revisions, should generally not be decided against an accused in their absence. The Supreme Court has consistently held that "criminal case, whether trial, appeal or revision should not be decided against accused in absence of his counsel". This principle stems from Article 21 of the Constitution, which guarantees protection to life and personal liberty.

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Supreme Court: Amicus curiae to be provided to the revisionist/appellant accused even if the absence of his counsel is deliberate.

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 accused, or the Court should appoint an amicus curiae to defend the accused ? {Para 4}

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 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.

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 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 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 the case by the counsel appointed as amicus curiae.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 546 of 2011 

Decided On: 24.02.2011

Md. Sukur Ali Vs. State of Assam

Hon'ble Judges/Coram:

Markandey Katju and Gyan Sudha Misra, JJ.

Citation: 2011 Cri L J 1960 (SC),  MANU/SC/0155/2011.

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Whether the court can dismiss the bail application if Advocate for accused remains absent?

 Prisoners have no remedy against absentee counsels and little

control over the adverse situation that follows. In these

circumstances the prisoner becomes a victim of “undeserved

want” within the meaning of Section 12 (e) of the Legal Services

Authorities Act, 1987 who is entitled to legal aid. Refusal of

legal aid to this class of prisoners would entail denial of justice.

{Para 18}

19. In this wake, dismissal of a bail application for non

prosecution on account of absence of counsel is impermissible,

as it is contrary to the rights of prisoners to legal aid under the

Legal Services Authorities Act, 1987 and violative of

fundamental rights of the prisoners guaranteed under Article 21

of the Constitution of India.

20. Personal liberty is the fount of all rights. Protection of liberty

is the crown of the court process. While deciding bails the courts

have to be cognizant of the entitlement of prisoners to legal aid,

and also alert to their right of hearing. In the event of non

appearance of a prisoner’s counsel the court may appoint an

amicus curiae to represent the prisoner and proceed with the

hearing of the bail.

ALLAHABAD HIGH COURT

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18536

of 2020

Applicant :- Maneesh Pathak

Opposite Party :- State of U.P.

Author: Hon'ble Ajay Bhanot,J.

Order Date :- 28.2.2023

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Guidelines of Supreme Court for fair disposal of session trial of serious nature

 Before we part, we must lay down certain norms so that the infirmities that we have noticed in the present matter are not repeated:

i) In all cases where there is a possibility of life sentence or death sentence, learned Advocates who have put in minimum of 10 years practice at the Bar alone be considered to be appointed as Amicus Curiae or through legal services to represent an Accused.

ii) In all matters dealt with by the High Court concerning confirmation of death sentence, Senior Advocates of the Court must first be considered to be appointed as Amicus Curiae.

iii) Whenever any learned Counsel is appointed as Amicus Curiae, some reasonable time may be provided to enable the counsel to prepare the matter. There cannot be any hard and fast Rule in that behalf. However, a minimum of seven days' time may normally be considered to be appropriate and adequate.

iv) Any learned Counsel, who is appointed as Amicus Curiae on behalf of the Accused must normally be granted to have meetings and discussion with the concerned Accused. Such interactions may prove to be helpful as was noticed in Imtiyaz Ramzan Khan MANU/SC/0851/2018 : (2018) 9 SCC 160.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 62-63 of 2014

Decided On: 18.12.2019

 Anokhilal  Vs.  State of Madhya Pradesh

Hon'ble Judges/Coram:

U.U. Lalit, Indu Malhotra and Krishna Murari, JJ.

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Whether court can dispose off appeal against conviction on merit when convict is not represented by Advocate?

 When the accused has preferred the appeal against the
conviction, the appeal can be disposed of on merits only after
hearing the appellant or his counsel. When there was no
representation for the appellant, in our considered view, the High
Court ought not to have disposed of the case on merits. It was held
in 2005 (11) SCC 185 titled Mangat Singh vs. State of Punjab that
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. 
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1106 OF 2019

SHANKAR Vs THE STATE OF MAHARASHTRA 

R.BANUMATHI, J.
Dated:23RD JULY, 2019.

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