Representation through Counsel in Criminal Cases : The Law Examined

The Bench comprising Justice Markandey Katju and Justice Gyan Sudha Mishra in Md. Sukur Ali v. State of Assam, have examined an important constitutional and legal question 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 ? The Bench observed as under;

Mr. Nariman, learned senior counsel, pointed out that earlier the counsel for the appellant-accused was Mr. A.S. Choudhury but the appellant changed his counsel and appointed Mr. B. Sinha in the year 2007 as his new counsel, and this fact is corroborated by affidavit. Unfortunately, the name of Mr. Sinha as counsel for the appellant was not shown in the cause list when the case was listed and the name of the former counsel Mr. Choudhury was shown. In these circumstances, Mr. Sinha who was engaged by the appellant as his new counsel did not appear. 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.

In our opinion, a criminal case should not be decided against the accused in the absence of a counsel. We are fortified in the view we are taking by a decision of the US Supreme Court in Powell Vs. Alabama, 287 US 45 (1932), in which it was observed :-

"What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense".

The above decision of the US Supreme Court was cited with approval by this Court in A.S. Mohammed Rafi Vs. State of Tamil Nadu & Ors., AIR 2011 Supreme Court 308, vide para 24.

A similar view which we are taking here was also taken by this Court in Man Singh & Anr. Vs. State of Madhya Pradesh (2008) 9 SCC 542, and in Bapu Limbaji Kamble Vs. State of Maharashtra, (2005) 11 SC 412.

In this connection we may also refer to Articles 21 and 22(1) of the Constitution. Articles 21 and Articles 22(1) are as under :

"Article 21. Protection of life and personal liberty. - No person shall be deprived of his life or personal liberty except according to procedure established by law".

Article 22(1). Protection against arrest and detention in certain cases. - (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice."

In Maneka Gandhi vs. Union of India AIR 1978 SC 597, it has been held by a Constitution Bench of this Court that the procedure for depriving a person of his life or 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.

The right to appear through counsel has existed in England for over three centuries. In ancient Rome there were great lawyers e,g, Cicero, Scaevola, Crassus, etc. who defended the accused. In fact the higher the human race has progressed in civilization, the clearer and stronger has that 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 simply recognizing what already existed and which civilized people have long enjoyed.

Apart from the above, we agree with the eminent jurist Seervai who has said in his "Constitutional Law of India', Third Edition, Vol. I, Pg. 857:-

"The right to be defended by counsel does not appear to have been stressed, and was clearly not considered in any detail in Ajaib Singh's case (1953) SCR 254. But the right of a person accused of an offence, or against whom any proceedings were taken under the Cr.P.C. is a valuable right which was recognized by Section 340 Cr.P.C. Article 22 (1) on its language makes that right a constitutional right, and unless there are compelling reasons, Article 22 (1) ought not to be cut down by judicial construction........ It is submitted that Article 22 (1) makes the statutory right under Section 340 Cr.P.C. a Constitutional right in respect of criminal or quasi-criminal proceedings." We are fully in agreement with Mr. Seervai regarding his above observations. The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long period under the formula `Na vakeel, na daleel, na appeal' (No lawyer, no hearing, no appeal). Many of them were lawyers by profession, and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22 (1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.

In this connection, we may also refer to the ringing speech of Rt. Hon. Srinivasa Sastri, speaking in the Imperial Legislative Council, at the introduction of the Rowlatt Bill, Feb 7, 1919 (the Rowlatt Act prohibited counsels to appear for the accused in cases under the Act):-

"When Government undertakes a repressive policy, the innocent are not safe. Men like me would not be considered innocent. The innocent then is he who forswears politics, who takes no part in the public movements of the times, who retires into his house, mumbles his prayers, pays his taxes, and salaams all the government officials all round. The man who interferes in politics, the man who goes about collecting money for any public purpose, the man who addresses a public meeting, then becomes a suspect. I am always on the borderland and I, therefore, for personal reasons, if for nothing else, undertake to say that the possession, in the hands of the Executive, of powers of this drastic nature will not hurt only the wicked. It will hurt the good as well as the bad, and there will be such a lowering of public spirit, there will be such a lowering of the political tone in the country, that all your talk of responsible government will be mere mockery...

"Much better that a few rascals should walk abroad than that the honest man should be obliged for fear of the law of the land to remain shut up in his house, to refrain from the activities which it is in his nature to indulge in, to abstain from all political and public work merely because there is a dreadful law in the land." In Gideon vs Wainwright, 372 US 335 (1963) Mr. Justice Hugo Black of the US Supreme Court delivering the unanimous judgment of the Court observed:- "Lawyers in criminal courts are necessities, not luxuries"

In Brewer vs William, 430 US 387 (1977) Mr Justice Stewart delivering the opinion of the US Supreme Court observed;-

"The pressures on state executive and judicial officers charged with the administration of the criminal law are great. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all. "  

For the reasons stated above, we allow this Appeal, set aside the impugned judgment of the High Court and remand the matter to the High Court for a fresh decision after hearing Mr. Sinha, the new learned counsel for the appellant in the High Court, or any other counsel which has been engaged by the appellant, or in the absence of these, an amicus curiae being a lawyer practising on the criminal side.

The case shall be heard by a Bench of Judges other than those who passed the impugned judgment. The Order dated 24.01.2011 passed by this Court granting bail to the appellant shall continue till the appeal is decided by the High Court.

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 practicing on the criminal side as amicus curiae and decide the case after fixing another date and hearing him.

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.

Delhi HC Denies Bail to Vishal Yadav in Nitish Katara Murder

The Delhi High Court today denied bail to Vishal Yadav, nephew of former Member of Parliament D P Yadav and a co-accused in the Nitish Katara murder case. 

Vishal is serving a life sentence for killing Nitish Katara, son of an Indian Administrative Service (IAS) officer. 

In June 2009, he was sentenced to life imprisonment for Katara's murder. 

Amrender Sharan, counsel for Yadav, submitted before the bench that his conduct during an interim bail earlier was good and therefore he should be given regular bail. 

Hearing the plea, the High Court bench of Justices B D Ahmed and Manmohan Singh ordered the petition be dismissed saying 'we cannot judge a person within four-five days'.

'His conduct might be good at the time of interim bail but it doesn't prove that same will be in nearby future,' said Justice Ahmed. 

Vishal and his cousin Vikas Yadav killed Nitish Katara on the night of February 17, 2002, after abducting him from a marriage party in Ghaziabad as they were opposed to Nitish's relationship with Bharti, Vikas's sister.

Delhi High Court on Complimentary Match Passes

Source : Times of India

The Delhi High Court on Wednesday directed the Delhi & District Cricket Association (DDCA) to issue only 10,000 complimentary passes for each of the four World Cup cricket matches to be played at the 41,000-capacity Ferozeshah Kotla stadium. 

Justice Sunil Gaur said: "DDCA should not issue more than 10,000 complimentary passes in each of the matches been played on different dates in Delhi. Remaining passes for tomorrow's (Thursday) match should be made online by evening for general public who want to book it," the court clarified while hearing a case filed by Jai Karan Singh, one of DDCA's oldest members, who had challenged the "arbitrary ways" of the association's executive committee in issuing complimentary tickets and sought a ceiling on it. 

"A total of 3,000 passes should be kept at the stadium gate so that match viewers can buy from there on the day of match also," Justice Gaur directed, adding that in future DDCA should sell 30,000 tickets online and at general outlets throughout Delhi. 

"Five thousand tickets should be sent to various banks in Delhi so that the cricket lovers can buy them there," the order says, adding the tickets of all rates should be available online. 

Singh had contended that the executive committee members issued free passes "at their whim and fancy for getting personal benefits not connected with the promotion of game of cricket". They said selling these tickets at a time when the cricket association was already running at a loss could have generated major revenue. 

In its reply, the executive committee denied issuing free passes and said it was only in response to certain "firm commitments". 

The committee also defended giving free tickets to officials of the Delhi government, Municipal Corporation of Delhi, traffic police and other civic agencies, saying they had to be "rewarded" in some way for their cooperation and support in holding the matches. 

The case will come up for hearing on April 28. 

The Kotla will host four matches during the World Cup: South Africa vs West Indies (Feb 24), West Indies vs Netherlands (Feb 28), Kenya vs Canada (Mar 7) and India vs Netherlands (March 9).

Obligation of Person Enjoying Benefit of Non-Gratuitous Act : The Law

Justice Jain

Justice V.K. Jain of the Delhi High Court has examined the law relating to the Obligation of a person enjoying benefit of non-gratuitous act as contemplated under S. 70 of the Indian Contract Act, in M/S. S.N.Nandy & Co. vs M/S. Nicco Corporation Ltd. While enunciating the law on the subject, the Court held as under;

17. Assuming, however, that the extra works claimed by the plaintiff were not authorized by the defendant and, therefore, the defendant is under no contractual obligation to pay for those works, the plaintiff is entitled to get reasonable payment for these works in view of the provisions contained in Section 70 of the Contract Act, 1872, which reads as under:-

"70. Obligation of person enjoying benefit of non-gratuitous act. Where a person lawfully does anything for another person, or delivers anything to him not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered."

18. A bare perusal of the above referred Section would show that three conditions need to be fulfilled before benefit of this provision can be invoked by a person. The first condition is that the claimant should either lawfully do something for another person or deliver something to him. The second condition is that while doing or delivering something, the claimant must not be acting gratuitously and thirdly, the person for whom something is done or to whom something is delivered must enjoy the thing done for or delivered to him as the case may be.

Invocation of Section 70 of the Contract Act was disputed by learned counsel for the defendant on the ground that the plaintiff has not pleaded essential requirement of the Section. In support of his contention that pleading ingredients of Section 70 is a pre-condition for its invocation, the learned counsel for the defendant has referred to Kotah Match Factory Kotah v. State of Rajasthan, AIR 1970 Rajasthan 118, Hansraj Gupta & Co. v. Union of India, AIR 1973 SC 2724, Union of India v. Sita Ram Jaiswal, AIR 1977 SC 329 and Devi Sahai Palliwal v. Union of India and another, AIR 1977 SC 2082.

19. In Kotah Match Factory (supra), the Rajasthan High Court noted that the plaintiff did not raise the plea for compensation under Section 70 of the Contract Act nor was any issue framed, nor were the parties given an opportunity to lead any evidence on the point. It was found that the case of the appellant before the Court was based upon an agreement. It was held that since the parties had not gone on trial on the question of compensation under Section 70 of the Contract Act, if the benefit of the aforesaid provision is allowed at this stage, it would amount to taking the opposite party by surprise. In Hansraj Gupta & Co.(supra), the Supreme Court was of the view that the conditions for the applicability of the Section 70 must at least be set out in the pleadings and proved. In Sita Ram Jaiswal (supra), the Supreme Court, inter alia, observed as under:-

"6. The three ingredients to support the cause of action under Section 70 of the Indian Contract Act are these: First, the goods to be delivered lawfully or anything has to be done for another person lawfully. Second, the thing done or the goods delivered is so done or delivered "not intending to do so gratuitously." Third, the person to whom the goods are delivered "enjoys the benefit thereof." It is only when the three ingredients are pleaded in the plaint that a cause of action is constituted under Section 70 of the Indian Contract Act. If any plaintiff pleads the three ingredients and proves the three features the defendant is then bound to make compensation in respect of or to restore the things so done or delivered."

In Devi Sahai Palliwal (supra), the Supreme Court found that there was no allegation in the plaint to support any pleading in proceeding under Section 70 of the Indian Contract Act. Relying upon its earlier decision in Sitaram Jaiswal (supra), it was held that in the absence of proper pleadings under Section 70 of the Indian Contract Act, the plaint should not be entertained.

20. The learned counsel for the plaintiff on the other hand has referred to State of West Bengal v. M/s B.K. Mondal and Sons, AIR 1962 SC 779, V.R. Subramanyam v. B. Thayappa and others, 3 SCR 663 and Food Corporation of India & Others v. Vikas Majdoor Kamdas Sahkari Mandli Ltd., 2007 (13) Scale 126. In the case of B.K. Mondal and Sons (supra), the Supreme Court, after reiterating the three conditions, which need to be satisfied before invoking Section 70 of the Contract Act, was of the view that when these conditions are satisfied, Section 70 imposes upon the person for whom something is done or to whom something is delivered, the liability to make compensation in respect of or restore the thing done for or delivered to him. During the course of the judgment, the Court, inter alia, observed as under:-

"14 .If a person delivers something to another it would be open to the latter person to refuse to accept the thing or to return it; in that case S. 70 would not come into operation. Similarly, if a person does something for another it would be open to the latter person not to accept what has been done by the former; in that case again S. 70 would not apply. In other words, the person said to be made liable under S. 70 always has the option not to accept the thing or to return it. It is only where he voluntarily accepts the thing or enjoys the work done that the liability under S. 70 arises. Taking the facts in the case before us, after the respondent constructed the warehouse, for instance, it was open to the appellant to refuse to accept the said warehouse and to have the benefit of it. It could have called upon the respondent to demolish the said warehouse and take away the materials used by it in constructing it; but, if the appellant accepted the said warehouse and used it and enjoyed its benefit then different considerations come into play and S. 70 can be invoked. Section 70 occurs in Chapter V which deals with certain relations resembling those created by contract. In other words, this chapter does not deal with the rights or liabilities accruing from the contract. It deals with the rights and liabilities accruing from relations which resemble those created by contract .Therefore, in cases falling under S. 70 the person doing something for another or delivering something to another cannot sue for the specific performance of the contract nor ask for damages for the breach of the contract for the simple reason that there is no contract between him and the other person for whom he does something or to whom be delivers something. All that Section 70 provides is that if the goods delivered are accepted or the work done is voluntarily enjoyed then the liability to pay compensation for the enjoyment of the said goods or the acceptance of the said work arises. Thus, where a claim for compensation is made by one person against another under S. 70, it is not on the basis of any subsisting contract between the parties, it is on the basis of the fact that something was done by the party for another and the said work so done has been voluntarily accepted by the other party. That broadly stated is the effect of the conditions prescribed by S. 70."

21. In V.R. Subramanyam (supra), the Court reiteratd the settled proposition of law that if a party of a contract rendered service to other not intending to do so gratuitously and another person had obtained some benefit, the former is entitled to compensation for the value of the services rendered by him. It was further held that even if a person has failed to prove an express agreement in this regard , the Court may still award him compensation under Section 70 of the Contract Act and such a decree for compensation would be under the statute and not under a contract.

22. In Food Corporation of India (supra), the Supreme Court, inter alia, observed as under:-

"12 ..A person who does work or who supplies goods under a contract, if no price is fixed, is entitled to be paid a reasonable sum for his labour and the goods supplied. If the work is outside the contract, the terms of the contract can have no application; and the contractor is entitled to be paid a reasonable price for such work as was done by him.

13. If a party to a contract has done additional construction for another not intending to do it gratuitously and such other has obtained benefit, the former is entitled to compensation for the additional work not covered by the contract. If an oral agreement is pleaded, which is not proved, he will be entitled to compensation under Section 70. Payment under this section can also be claimed for work done beyond the terms of the contract, when the benefit of the work has been availed of by the defendant."