Guidelines in the matter of appointment of Amicus Curiae to defend the accused in serious Criminal matter.

Kritika Pandey | Maharaja Sayajirao University of Baroda | 20th December 2019

Anokhilal Vs. State of Madhya Pradesh; Criminal Appeal Nos. 62/63 of 2014

Facts:

• A missing report was lodged by Ramlal that his daughter (hereinafter referred as ‘the victim’) aged about nine years was missing since 6 pm and that the appellant, his neighbour had sent the victim to get a bidi from a kirana shop but the victim never returned back.
• A FIR was registered against the appellant. The body of the victim was found in an open field. The appellant was arrested and after completion of investigation charge-sheet was filed in the concerned court and the case was committed to Sessions Court.
• It seems that no Advocate had appeared on behalf of the appellant a learned Advocate was appointed by the Legal Aid Services Authority to represent the appellant when the charges were framed against the appellant for the offenses punishable under Sections 302, 363, 366, 376(2)(f) and 377 of IPC and under Sections 4, 5 and 6 of Protection of Children from Sexual Offenses Act, 2012.

Judgment of Trial Court:

• For the offence under Section 302 IPC accused is awarded ‘death sentence’. By tying knot in neck, he be hanged till his death.
• For the offence under Section 363,366,376(2)(f),377 IPC the accused is sentenced to seven years rigorous imprisonment with fine of Rs.1000/- respectively, in default of payment of fine, he is directed to undergo another one month rigorous imprisonment.
• Separate order of sentence for the offence under Section 6 of Protection of Children from Sexual Offenses Act, 2012 is not being passed.

Judgment by High Court:

• Criminal Reference No.4/2013 was accordingly registered in the High Court for confirmation of death sentence. The appellant also preferred Criminal Appeal No.748 of 2013 for challenging his conviction and sentence.
• The High Court upheld the death sentence and other sentences imposed by the Trial Court.

ISSUE RAISED:

• Whether the approach adopted by the Trial Court in the present matter could be accepted?
• Whether expedition disposal is necessary in the criminal matters?

In Bashira vs. State of U.P.(1969 1 SCR 32) the SC held that “the amicus curiae counsel was appointed to represent the appellant just when the trial was about to begin. It deprived the appellant of adequate legal aid, and he was unable to defend himself properly. It was urged that the procedure adopted by the court was not in accordance with law, so that, if the sentence of death is carried out, the appellant will be deprived of his life in breach of his fundamental right under Article 21 of the Constitution which lays down that no person shall be deprived of his life or personal liberty, except according to procedure established by law.”

Similarly, in the present case also the Amicus Curiae, was appointed on the day when the counsel was called upon to defend the accused at the stage of framing of charges. The Amicus Curiae did not have sufficient time to go through even the basic documents, neither the advantage of any discussion nor interaction with the accused, and time to reflect over the matter. Thus, even before the Amicus Curiae could come to grips of the matter, the charges were framed.

HELD:

• It was held that, the approach adopted by the Trial Court, in our view, may have expedited the conduct of trial, but did not further the cause of justice. Not only were the charges framed the same day as stated above, but the trial itself was concluded within a fortnight thereafter. In the process, the assistance that the appellant was entitled to in the form of legal aid, could not be real and meaningful.
• Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded.
• In the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed. What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process may be expedited, but fast tracking of process must never ever result in burying the cause of justice.
• Setting aside the judgments of conviction and orders of sentence passed by the Trial Court and the High Court against the appellant and directing de novo consideration. The matter shall, thereafter, be considered on the basis of available material on record in accordance with law.

Guidelines for appointment of Amicus Curiae:

• 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.
• 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.
• 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.
• 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.