Appoint amicus curiae to help unrepresented convict appeal: Punjab and Haryana High Court

Saurabh Malik

Chandigarh, March 31

The Punjab and Haryana High Court has made it clear that amicus curiae or “friend of the court” is required to be appointed to ensure adequate representation for convicts unrepresented by a counsel in legal proceedings. The Bench has also made it clear that failure to appoint amicus curiae will essentially deprive them of their right to appeal. A subsequent decision without adequate representation will, as such, tantamount to stripping away this fundamental right.

The ruling by Justice Kuldeep Tiwari of the high court came on a petition challenging a trial court judgment convicting the petitioner in a cheque bounce case under Section 138 of the Negotiable Instruments Act before sentencing him to undergo six-month imprisonment. He was also directed to pay the cheque amount of Rs 40 lakh to the complainant. The petitioner had also challenged the dismissal of his appeal by an appellate court.

Justice Tiwari’s Bench, during the hearing, was told that the appeal was dismissed after the petitioner failed to comply with the appellate court’s directions to deposit 20 per cent of the total compensation amount. The Bench observed that the judgment’s perusal showed that the petitioner was absent on the date fixed for the final arguments.

Justice Tiwari asserted that the best procedure the appellate court could have adopted was to decide the appeal after appointing an amicus curiae, so that the petitioner was not unrepresented at the time of final decision. An appeal was a convict’s statutory right and it could not be taken away in a cursory manner.

He asserted that adequate protection granted under the statute was required to be adhered to. Adequate protection also included ‘adequate and effective representation’ of the appellant, either by a counsel appointed by him or through amicus curiae appointed by the court concerned.

Disposing of the plea, Justice Tiwari added that: “In failure to appoint amicus curiae, any subsequent decision made on the appeal would in fact tantamount to taking away the right of appeal from the convict. Therefore, this court deems it fit and appropriate to set aside the judgment passed by the first appellate court concerned and remanded the instant list to the appellate court concerned for its decision afresh…”

Before parting with the order, he added that the direction was subject to the condition of the petitioner appearing before the appellate court only after depositing 20 per cent of the compensation amount as directed by it earlier.