2012 INSC 0253
Chaluvegowda & Others
v.
State by Circle Inspector of Police
(Supreme Court Of India)
HON'BLE MR. JUSTICE H.L. DATTU HON'BLE MR. JUSTICE ANIL R.
DAVE
Criminal Appeal No. 274 Of 2002 | 22-03-2012

In Seneca's Medea (4 B.C.-A.D. 65), it is said "A Judge is unjust who hears but
one side of a case, even though he decides justly." With this preface, let us deal
with the issue raised in this appeal.

1. The appellants (27 persons) were tried on the charge of having murdered
Rajegowda and causing injuries to several other persons. The trial court had
passed on order of acquittal, acquitting all the 27 accused persons on the ground
that the prosecution has failed to establish any of the charges against the
accused.

2. The impugned judgment holds the appellants guilty of committing the
offence punishable under Section 302/149 of the Indian Penal Code (the 'IPC'
for short) as well as for the offences punishable under Sections 143, 148, 324
r/w Section 149, 448 and 427 r/w Section 149 of the 'IPC' and each of them is
sentenced to undergo imprisonment for life and they are not awarded separate
sentence for other minor offences.

3. We do not find it necessary to notice minutely the factual details as the same
have been noted in the impugned judgment. The gist of the prosecution case, as
noticed in the impugned 2 judgment, is as follows : On 4.7.1987, at about 7 am
near the Hithalu of one Kalegowda PW-17, situate by the side of a road leading
from Doddahalli to Doddahalli Shandy Maidan, all these respondents/appellants
formed themselves into an unlawful assembly, with the common object of
committing the murder of one Rajegowda and they did infact commit the
offence of rioting and at that time, they were also armed with deadly weapons
like clubs, sickles and stones and in prosecution of the common object of such

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unlawful assembly, one of the members of such unlawful assembly viz. the
appellant No.1 committed the murder of the said Rajegowda and the appellants
A2 to A27 caused simple injuries to PW-1 Cheluvegowda, PW-5 Annaji
Gowda, PW-6 Marigowda, PW-9 Ramu, PW-12 Daddegowda, PW-13
Rajegowda and PW- 15 Puttaswamy Gowda with deadly weapons and that
further, they proceeded to the house of PW-9 and after trespassing into the
house of PW-9 in the village, caused damaged to the door of his house, causing
wrongful loss to pw-9 to an extent of ? 50/- and also caused simple injuries.
With these charges, the respondents were put on trial before the Trial Court.

4. Upon being charged of the offences punishable under Sections 143, 148, 324,
302 r/w 149, 448, 327 r/w 149 of the 'IPC', the appellants had claimed trail.

5. In order to substantiate its case against the appellants/accused, the
prosecution had examined at the trial PWs-1 to 21 and placed on record exs. P-1
to P-17, and the defence examined DW-1.

6. When confronted with the incriminating evidence, the stand of the
appellants/accused was of bald denial. The trial concluded with the acquittal of
the appellants.

7. Aggrieved by the judgment and order so passed by the trial Judge, the State
moved the High Court by filing Criminal Appeal no. 777/1996. After hearing
the learned Additional Public Prosecutor, the High Court found it fit to grant
leave to appeal and admitted the appeal on 19.09.1996. Further, the High Court
issued non-bailable warrants against the appellants herein, and the same was
duly executed and the appellants were granted bail by the learned Addl.
Sessions Judge, Hassan, in terms of Section 390 of the Code of Criminal
Procedure, 1973 ("the Code" for short).

8. After preparation of paper books, the appeal was listed before the Court on
30.01.2001 for appointment of learned counsel for the respondents/accused in
the appeal, since they were unrepresented. The High Court thought it fit to
appoint one Smt. Pushpakantha, learned counsel, to appear on their behalf as
amicus curiae vide order dated 31.01.2001. The order sheet maintained by the

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High Court suggests that the paper book was notified on 08.02.2001. Thereafter,
the matter was posted before the Court on 12.10.2001 for hearing. Since the
amicus-curiae appointed earlier was not present on that day, before beginning
the hearing of learned Additional Public Prosecutor, the Court appointed one
Smt. Manjula Kamadolli, advocate, as amicus-curiae to represent the
respondents/accused on the same day which was the date fixed for hearing of
the appeal and in fact hearing completed on the very same day and the matter
was reserved for judgment. The judgment was delivered by the High Court on
17.10.2001 convicting the respondents/accused for the offence of murder
punishable under Section 302/149 IPC and sentencing them to undergo life
imprisonment. It is this judgment which is the subject matter of this appeal.

9. Though several contentions are taken in the memorandum of appeal filed by
the appellants, Shri. Anoop G. Choudhary, learned senior counsel appearing for
the appellants, would submit that the appellants were not given sufficient
opportunity by the High Court to defend themselves in the criminal appeal filed
by the State against the order of acquittal passed by the learned Additional
Sessions Judge. He further submits that the High Court failed to give adequate
time to the newly appointed Amicus Curiae to study and prepare the case and
she was made to follow arguments of the learned Public Prosecutor and
thereafter, was asked to reply to the said arguments. The procedure so adopted
by the leaned Judges, according to learned counsel, is in violation of the
principles of effective representation and fair trial and the same has caused
'miscarriage of justice' to the appellants.

10. Shri. V.N. Raghupathy, learned counsel appearing for the respondent-State,
very fairly submits, that, he is unable to defend the procedure adopted by the
High Court.

11. To appreciate the submission of the learned senior counsel, we have perused
the judgment impugned and the order sheet of the proceedings before the High
Court. From the order sheet maintained by the High Court and the impugned
judgment, it appears that Smt. Pushpakantha, learned counsel, was appointed as
amicus curiae earlier, but she was not present before the Court on the date when
the matter was posted for hearing. On the same day, the High Court thought it
fit to appoint Smt. Manjula Kamadolli, learned counsel, as the amicus curiae

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and proceeded with the hearing of the State's appeal. The noting made by the
High Court is extracted :

"Learned Advocate Smt. Pushpakantha, appointed as Amicus Curiae for the
respondents has not turned up to argue the matter and failed to represent the
respondents when the matter has reached for hearing and hence, on the peculiar
facts and circumstances of the case, having waited for the arrival of the learned
Counsel Smt. Pushpakantha for quite sometime and when ultimately she did not
turn up, we invited Smt. Manjula Kamdolli to appear as Amicus curiae on
behalf of the respondents and gave her sufficient time to go through the case
papers. Accordingly, the learned Counsel Smt. Manjula Kamadolli, who
followed the arguments of the learned Addl. S.P.P. and also having prepared
herself in the case, argued the matter on behalf of the respondent.

2. We have heard the arguments of the learned Addl. S.P.P. for the appellant-
State and the learned Amicus Curiae Smt. Manjula Kamadolli for the
respondents at a considerable length and carefully perused the entire case papers
including the evidence and the impugned judgment of the Trial Court, with their
assistance......"

12. In our opinion, the High Court rightly thought it fit to appoint yet another
learned counsel as amicus curiae to assist the accused-appellants as Smt.
Pushpakantha, appointed as amicus curiae earlier had not turned up to argue the
case and failed to represent the accused. However, having thus appointed
another amicus curiae, it was incumbent upon the High Court to have given
sufficient time and opportunity to Smt. Manjula Kamadolli to go through the
papers and prepare her brief, and only then make her submissions. We do not
approve the method in which Smt. Kamadolli was made to argue the case on the
very day she was asked to represent the respondent/accused. We cannot loose
sight of the fact that the accused were acquitted by learned Sessions Judge after
a lengthy trial where prosecution had examined 21 witnesses and had marked
numerous exhibits in aid of the prosecution case. The ground realities are even
the best of brains in criminal law jurisprudence would certainly take some time
to scan through prosecution case, lengthy cross-examination of material
witnesses, nuances of the prosecution case and the possible reasons and
conclusion reached by the learned Sessions Judge. This aspect appears to have

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been lost sight of the learned Judges who had vast experience as learned Judges,
who had conducted and decided the cases arising under the criminal law
jurisprudence. Even otherwise also, a learned counsel who was sitting in the
Court, for some other case, if he or she is asked to accept a brief, which has it's
own complexities and make the submission either for the prosecution or for the
defence, the counsel may accept the brief out of sheer humility and respect to
the Court, but may not be in a position to do any justice either to
himself/herself, to the brief and to the Court. Therefore, in our opinion,
sufficient time and complete papers should have been made available, so that
the Advocate chosen may serve the cause of justice with all ability at her/his
command.

13. Before considering the issue raised in this case, it is necessary to refer to
Rules relating to the appointment of an amicus curiae. These Rules find a place
in the High Court of Karnataka Rules, 1959 ["the Rules" for short]. Rule 2A
was introduced by Notification No. LCA-1/480/92 dated 1.06.1999 w.e.f.
24.06.1999, and reads as under:

"2-A. (i) Wherein a criminal case before the High Court the accused is not
represented by an Advocate and if the Court is satisfied that the accused has no
sufficient means to engage an Advocate or where the accused remains absent
and the interest of justice so requires, the Court may appoint any Advocate from
the panel prepared under Clause (iv) below to represent the accused in such case
at the expense of the State.

(ii) The fact and the date of appointment of the amicus curiae under clause (i)
above shall be noted in the order sheet.

(iii) The amicus curiae shall be entitled to inspect the records of the case, the
office shall furnish him with necessary papers and the Court shall allow him
adequate time for presenting the case for the accused.

(iv) Panel of Advocates of not more than ten, who are willing and suitable, may
be prepared and approved by the Chief Justice every year in January. However,
a panel once prepared shall remain in force until fresh panel of Advocates is
prepared. No Advocate who has put in not less than five years of practice at the
Bar shall be included in the panel.

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(v)............"

14. The Clause 2-A(i) of the Rules mandates the High Court in criminal cases,
where accused is not represented by an Advocate and is not possessed with
sufficient means to engage an Advocate or where the accused remains absent
though notified of hearing of the appeal to appoint any Advocate from the panel
of Advocates prepared, as provided under Clause IV of the Rules. Though
Clause 2-A(i) uses the expression "may", the same requires to be interpreted as
laying down mandatory direction to the Court to engage an Advocate, if the
conditions laid down in the Rule are otherwise satisfied. See Bashira v. State of
U.P., AIR 1968 1313.

15. Clause 2-A(iii) imposes an obligation on the High Court to furnish the
relevant papers to the person appointed as amicus curiae counsel for the purpose
of defence and give adequate time for presenting the case for the accused. The
language used in this clause is 'shall'. On the basis of the language used, it is
mandatory for the High Court, firstly, to appoint an amicus-curiae, if the
conditions laid down in the Rule are satisfied and allow sufficient time to the
counsel so appointed to prepare for the defence of the accused. The grievance of
Sri Choudhary is not that the amicus curiae was not at all engaged to represent
the appellants in the High Court; but not providing sufficient time to the counsel
so appointed to prepare and present the case of the defence of the accused. In
the present case, the facts mentioned by us clearly shows that Smt. Manjula
Kamadolli was appointed amicus-curiae on 12th October, 2001, which was the
date fixed for hearing of the appeal and in fact hearing of the appeal completed
on the same day and the matter was reserved for judgment. The course adopted
by the High Court was in breach of Clause 2-A(iii) of the Rules; which clause
requires that the Advocate appointed under the Rules shall be allowed sufficient
time to prepare and present for the defence. The purpose of following the
mandatory requirement of the aforesaid rules is to prevent mis-carriage of
justice and observance thereof is the pragmatic requirement of fairness in
action.

16. We may now refer the decisions on which reliance is placed by leraned
senior counsel Shri. Anoop Choudhary. In Bahira v. State of U.P., AIR 1968 SC

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1313, this Court, while interpreting Rule 37 of the Allahabad High Court
General Rules (Criminal) 1957, has held:

"8. There is nothing on the record to show that, after his appointment as counsel
for the appellant, Sri. Shukla was given sufficient time to prepare the defence.
The order-sheet maintained by the Judge seems to indicate that, as soon as the
counsel was appointed, the charge was read out to the accused and, after his
plea has been recorded, examination of witnesses began. The counsel, of course,
did his best cross-examine the witnesses to the extent it was possible for him to
do in the very short time available to him. It is true that the record also does not
contain any note that the counsel asked for more time to prepare the defence,
but that, in our opinion, is immaterial. The Rule casts a duty on the court itself
to grant sufficient time to the counsel for this purpose and the record should
show that the Rule was complied with by granting him time which the court
considered sufficient in the particular circumstances of the case. In this case, the
record seems to show that the trial was proceeded with immediately after
appointing the amicus curiae counsel and that, in fact, in any time at all was
granted, it was nominal. In these circumstances, it must be held that there was
no compliance with the requirements of this Rule."

17. In the aforesaid decision, this Court has referred to the decision of Andhra
Pradesh High Court in the case of Alla Nageswara Rao, AIR 1957 AP 505,
where, Subba Rao, C.J. (as he then was), had held:

"(2) It must be borne in mind that the accused should be given every reasonable
opportunity to put forward their case and their defence, particularly when a
charge for a grave offence is leveled against them. Rule 228 of the Criminal
Rules of Practice reads:

"A pleader will be engaged at the cost of the State to defend an accused person
who does not engage a pleader himself and who is under sentence of death or
has been called upon to show cause why a sentence of death should not be
passed upon him or against whom an appeal has been filed under S. 417,
Criminal Procedure Code, in cases involving imprisonment, and may, if
necessary, be engaged in a case involving lesser sentence.

(3) A mere formal compliance with this rule will not carry out the object
underlying the rule. A sufficient time should be given to the advocate engaged

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on behalf of the accused to prepare his case and conduct it on behalf of his
client. We are satisfied that the time given was insufficient and, in the
circumstances no real opportunity was given to the accused to defend himself."

18. Reference is also made to the decision of the High Court in the case of
Mathai Thommen v. State, AIR 1959 Ker 241, wherein it is held:

"14... It need hardly be said that in a case of this nature in which the accused ran
the risk of being sentenced to the extreme penalty of law - and the sentence was
actually passed on him by the Sessions Judge - the time allowed to the counsel
to prepare the case and obtain instructions was totally insufficient. The learned
Judge could have appointed a counsel immediately after the receipt of the
records or at least some 10 to 15 days in advance of the trial......

Practices like this would reduce to a farce the engagement of counsel under
Rule 21 of the Criminal Rules of Practice which has been made for the purpose
of effectively carrying out the duty cast on courts of law to see that no one is
deprived of life and liberty without a fair and reasonable opportunity being
afforded to him to prove his innocence. We consider that in cases like this
counsel should be engaged at least some 10 to 15 days before the trial and
should also be furnished with copies of the records......"

19. The right to a fair trial is one to be enjoyed by the guilty as well as the
innocent, for an accused is presumed to be innocent until proved to be otherwise
in a fairly conducted trial. This right would include that he defended by a
competent counsel. The provision of an amicus curiae for an accused, in case
the accused is unable to engage an Advocate to conduct his defence, is to ensure
the goal of a fair trial which is a guarantee provided in the constitution. We may
recall the often quoted passage of Potter Stewart "Fairness is what justice really
is".

20. The right to be represented by a lawyer must not be an empty formality. It
must not be a sham or an eye-wash. The appointment of an amicus curiae for
the defence of an accused person must be in true letter and spirit, with due
regard to the effective opportunity of hearing that is to be afforded to every

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accused person before being condemned. The due process of law incorporated
in our constitutional system demands that a person not only be given an
opportunity of being heard before being condemned, but also that such
opportunity be fair, just and reasonable.

21. It is appropriate to recall the case of Powell v. State of Alabama, 287 US 45,
in which nine black men were accused of raping two white women, and were
charged with the same. Since the accused were from a different state, they did
not have legal assistance, so the trial judge, in a very vague manner, appointed
all the members of the Alabama Bar to defend the accused. However, when the
actual trial was underway, none of the lawyers defended the accused, but only
offered to provide assistance to the defence lawyer. Satisfied by this, the trial
judge allowed the trial to proceed in the absence of an effective legal assistance
for the accused, and the trial resulted in a conviction with the death sentence
accorded on the accused. The US Supreme Court took strong exception to the
procedure adopted by the trial Court. The Court held [at pg. 53]:

"It is hardly necessary to say that the right to counsel being conceded, a
defendant should be afforded a fair opportunity to secure counsel of his own
choice. Not only was that not done here, but such designation of counsel as was
attempted was either so indefinite or so close upon the trial as to amount to a
denial of effective and substantial aid in that regard."

22. The Court, speaking through Justice Sutherland, further held [at pg. 58]:

"...The defendants, young, ignorant, illiterate, surrounded by hostile sentiment,
haled back and forth under guard of soldiers, charged with an atrocious crime
regarded with especial horror in the community where they were to be tried,
were thus put in peril of their lives within a few moments after counsel for the
first time charged with any degree of responsibility began to represent them.

It is not enough to assume that counsel thus precipitated into the case thought
there was no defense, and exercised their best judgment in proceeding to trial
without preparation."

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23. In the case of Gideon v. Wainwright, 372 US 335, the US Supreme Court,
approving the above observations, laid down following principles:

"...In returning to these old precedents, sounder we believe that the new, we but
restore constitutional principles established to achieve a fair system of justice.
Not only these precedents but also reason and reflection require us to recognize
that in our adversary system of criminal justice, any person haled into court,
who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is
provided for him. This seems to us to be an obvious truth. Governments, both
state and federal, quite properly spend vast sums of money to establish
machinery to try defendants accused of crime. Lawyers to prosecute are
everywhere deemed essential to protect the public's interest in an orderly
society. Similarly, there are few defendants charged with crime, few indeed,
who fail to hire the best lawyers they can get to prepare and present their
defences. That government hires lawyers to prosecute and defendants who have
the money hire lawyers to defend are the strongest indications of the widespread
belief that lawyers in criminal courts are necessities, not luxuries. The right of
one charged with crime to counsel may not be deemed fundamental and
essential to fair trial in some countries, but it is in ours..."

24. This Court in Mohd. Sukur Ali v. State of Assam, (2011) 4 SCC 729, has
held :

"5. 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.

...............

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9. In Maneka Gandhi v. Union of India, it has been held by a Constitution
Bench of this Court that the procedure for depriving a person of his life and
liberty should be fair, reasonable and just. We are of the opinion that it is not
fair or just that a criminal case should be decided against an accused in the
absence of a counsel. It is only a lawyer who is conversant with law who can
properly defend an accused in a criminal case. Hence, in our opinion, if a
criminal case (whether a trial or appeal/revision) is decided against an accused
in the absence of a counsel, there will be violation of Article 21 of the
Constitution.

10. The right to appear through counsel has existed in England for over three
centuries. In ancient Rome there were great lawyers e.g. Cicero, Scaevalo,
Crassus, etc. who defended the accused. In fact the higher the human race has
progressed in civilisation, the clearer and stronger has the right appeared, and
the more firmly has it been held and asserted. Even in the Nuremberg trials the
Nazi war criminals, responsible for killing millions of persons, were yet
provided counsel. Therefore when we say that the accused should be provided
counsel we are not bringing into existence a new principle but simple
recognising what already existed and which civilised people have long
enjoyed."

25. In the case of Mohd. Hussain v. State, (2012) 2 SCC 584, this Court (of
which one of us was a party) emphasized the importance of a fair trial and a
meaningful assistance of legal counsel being given to an accused person, as
these two are of paramount importance to uphold the rule of law.

26. In our considered view, the accused-appellants were not given an effective
opportunity to defend themselves in a case as the one involved here, carry the
possibility of a substantial prison sentence. Therefore, we say, the procedure
adopted by the High Court is not only contrary to the Rules as quoted above,
and also contrary to the fair trial which is the first imperative of dispensation of
justice. Therefore, it is difficult for us to sustain the impugned judgment and
order passed by the High Court.

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27. Since we intend to remand the matter to the High Court for a fresh disposal
in accordance with law after giving a sufficient opportunity to the appellants to
defend themselves effectively, it is not necessary to notice the other contentions
canvassed by the learned counsel on the merits of the case.

28. In view of the above discussions, we have no other alternative but to accept
the appeal and set aside the impugned judgment and order passed by the High
Court and remand the matter to the High Court for re-decision of the appeal in
the light of the observations made by us and in accordance with law.

29. Ordered accordingly.

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