The Supreme Court has directed High Courts to notify convicts before appointing an amicus curiae to represent them. The move aims to ensure fair representation and prevent future legal disputes in long-pending criminal appeals.
The Supreme Court has recently clarified an important procedural safeguard for criminal appeals, stating that High Courts should inform convicts when an amicus curiae (a lawyer appointed by the court) is assigned to represent them. This observation came in the case of Bhola Mahto v. State of Jharkhand and aims to ensure fair representation while also preventing unnecessary legal disputes later.
A Bench comprising Justices Dipankar Datta and SC Sharma highlighted that informing the convict in advance can reduce technical objections raised at a later stage.
The Court said:
“To curb the tendency of convicts to raise technical pleas … 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,”
The Court further explained that once such a notice is served, the process becomes smoother. If the convict contacts the amicus and provides instructions, the hearing can continue without any difficulty. Additionally, if the convict prefers to appoint a lawyer of his own choice, the High Court can hear both the private counsel and the amicus.
The Bench also laid down a practical approach for situations where the convict cannot be located or refuses to accept the notice. In such cases, simply affixing the notice at the last known address would be sufficient. The Court stated:
“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,”
According to the Supreme Court, this procedure will help eliminate future allegations that the convict was not properly represented. It will also save valuable judicial time, especially in cases that have been pending for several years. The Court observed:
“This process would ensure obtaining of information as to whether the appeal survives for decision or stands abated. In case of the latter, the courts could avoid spending precious judicial time deciding an appeal which, by operation of law, may not require a decision on merits,”
The case arose from an unusual situation where a convict claimed that he was not aware that the Jharkhand High Court had appointed an amicus curiae to represent him in a murder appeal that had been pending since 2003.
Interestingly, the amicus had successfully argued for a lesser offence. The High Court modified the conviction from murder to culpable homicide not amounting to murder and reduced the sentence from life imprisonment to 5 years. However, since the convict had only served around 3 years in jail and had been out on bail for nearly two decades, he was asked to return to prison to complete the remaining sentence.
The convict challenged this before the Supreme Court, arguing that the amicus did not raise all the grounds he wanted to argue and that he deserved acquittal. Reacting to this, the Supreme Court remarked:
“We are reminded of the expression ‘give him an inch and he will ask for a mile,'”
The Court firmly rejected the argument, stating that the amicus had acted reasonably and effectively. It also noted that the High Court had made genuine efforts to dispose of a long-pending case. The Bench observed:
“The learned amicus came to be appointed by the High Court when it was noticed that the appeal remained pending for more than two decades and there was no representation from the side of the appellant despite repeated calls. In his wisdom, the learned amicus urged only one ground and succeeded. We see nothing wrong in the approach of the learned amicus. Also, the approach of the High Court endeavouring to expedite a decision on the appeal is not unjustified. Appellant was enjoying the concession of bail for two decades without being in any manner concerned about the fate of his appeal.”
The Supreme Court also made a broader observation about the conduct of convicts who are released on bail. It noted that many such individuals tend to ignore their cases after getting relief. The Court said:
“Drawing from experience, we can record that on many an occasion, such convicts become untraceable. These convicts, enjoying the concession of bail and misusing it, need to be dealt with firm and strong hands by the courts,”
At the same time, the Court acknowledged that the High Court could have taken an additional step by informing the convict about the appointment of the amicus.
It clarified:
“The High Court in its anxiety to deliver justice without further delay and to decide the appeal expeditiously upon hearing the learned amicus, had not made an attempt to inform the appellant that his appeal having been listed for final hearing (after two decades) and there being absence of representation from his side, (on the first day) an amicus had been appointed to represent him. The High Court was under no obligation to inform the appellant of his counsel’s absence; however, it would have been a desirable precaution if the appellant were so informed,”
Considering these circumstances, the Supreme Court decided to send the case back to the High Court for a fresh hearing. The convict has been granted bail until the appeal is decided again.
Concluding the matter, the Court expressed hope that such situations would not arise in the future and that courts would follow this improved procedure to ensure fairness as well as efficiency.
“We hope and trust that a similar situation does not arise in future,”
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