Summary
A convict who was on bail heard nothing of his criminal appeal for two decades. When it was finally listed, the High Court appointed an amicus because his counsel was absent and altered his murder conviction to one under Section 304 Part II IPC. The Supreme Court refused to let him raise unargued grounds for the first time, but held that he should have been notified of the amicus's appointment. It remanded the appeal for a fresh hearing, restored his bail, and suggested a notice procedure for future cases where an amicus is appointed for an absent convict.
Issues
- Whether a convict can urge in the Supreme Court grounds from his memorandum of appeal that were not pressed before the High Court by the amicus appointed in his counsel's absence.
- Whether the High Court's failure to inform the convict of his counsel's absence and the amicus's appointment warranted remand.
- What procedure appellate courts should follow when appointing an amicus for a convict whose counsel is absent.
Provisions considered
- Section 374(2), Code of Criminal Procedure, 1973The appellant's appeal against his sessions court conviction lay to the High Court under this provision. Once the impugned order was set aside, the appeal was revived on the High Court's file for a fresh hearing. (¶¶ 2, 15)
- Section 300, Exception 4, and Section 304 Part II, Indian Penal Code, 1860The High Court, on the amicus's argument of a sudden quarrel, applied Exception 4 and altered the murder conviction to one under Section 304 Part II. The Supreme Court did not examine the merits; all points are open on remand and the High Court is not to be influenced by its earlier findings. (¶¶ 5, 6, 18)
Held
- Grounds in the memorandum of appeal that were not pressed before the High Court cannot be urged before the Supreme Court for the first time. The amicus was not to blame for urging only the ground on which he succeeded. An appellant on bail for two decades who did not keep track of his appeal has himself to blame. (¶ 13)
- The High Court was under no obligation to tell the appellant that his counsel was absent and an amicus appointed, but it would have been a desirable precaution, since legal aid must be real and meaningful. That was especially so where the appeal was listed for the first time some two decades after the appellant was released on bail. On this ground the appeal was remanded for a fresh hearing. (¶¶ 14, 15)
- On remand the appeal should preferably go to the same Division Bench, or to one including at least one of its Judges. If the appellant's own counsel does not appear, no amicus need be appointed and the Bench may decide as it thinks fit. All points on merit are open and the appeal is to be decided early. (¶¶ 16, 17, 18)
- Since the impugned order was set aside, the status quo ante was restored. The appellant was to be released on bail on terms set by the trial court, and his liberty is not to be curtailed until the High Court decides the appeal on merits. (¶¶ 19, 20)
- When an appellate court appoints an amicus for a convict whose counsel is absent, it may consider having notice served on the convict through the jurisdictional police station, at the address in the memorandum of appeal, asking him to instruct the amicus. If the convict is not found or refuses, affixing the notice on the premises is sufficient, and if he remains dormant the court may decide the appeal. The process also helps find out whether the appeal has abated. For convicts in custody for offences punishable with death or life imprisonment, the Anokhi Lal norms must be scrupulously followed. (¶¶ 22, 23)
Result
Appeal partly allowed. The High Court's order was set aside and the criminal appeal restored for a fresh hearing on all points, with the appellant released on bail on terms to be imposed by the trial court pending its disposal.