In a notable ruling, the Allahabad High Court has held that dismissal of a bail application for non prosecution on account of absence of counsel is impermissible, as it is contrary to the rights of prisoners to legal aid under the Legal Services Authorities Act, 1987 and violative of fundamental rights of the prisoners guaranteed under Article 21 of the Constitution of India.
The single-judge bench of Justice Ajay Bhanot observed that in the event of non appearance of a prisoner’s counsel the court may appoint an amicus curiae to represent the prisoner and proceed with the hearing of the bail.
The Court opined that prisoners have no remedy against absentee counsels and little control over the adverse situation that follows and therefore refusal of legal aid to this class of prisoners would entail denial of justice.
"In these circumstances the prisoner becomes a victim of “undeserved want” within the meaning of Section 12 (e) of the Legal Services Authorities Act, 1987 who is entitled to legal aid."
The Court stated that right to bail is derived from statute but cannot be isolated from constitutional oversight and the right of an accused to seek bail in the charter of fundamental rights assured by the Constitution of India has long been entrenched and cited slew of cases which consists of a detailed discussion on constitutional law anchoring right of bail flowing from Article 21 of the Constitution of India.
In background of the above, the Court established that constitutional moorings of the right of bail also bring the right of fair hearing within its ambit.
"Legal aid is an indispensable instrument to secure the preambled objective of justice to all citizens. The national capacity to deliver equal justice is girded by the institutional ability to provide legal aid. Legal aid was exalted as a fundamental right by constitutional courts even before it was vested as a statutory right by the legislature under the Legal Services Authorities Act."
"It is important though to bear in mind the distinction between a lis where civil rights are adjudicated, and a criminal case in which the prisoner’s personal liberty is engaged. A litigant can elect to waive civil claims by not prosecuting them. However, citizens cannot relinquish their personal liberty even by choice. Personal liberty is irrevocably vested in every citizen by the Constitution and the courts are its permanent guardians."
Lawyers’ duties to their clients essentially involves diligently preparing the briefs and vigilantly prosecuting causes of litigants before the courts. The Court stressed that in bail applications special care has to be taken by the counsels since the applicant is in jail and the counsel is his sole representative before the court.
"Time honoured conventions of the nobel profession cast an unconditional duty on the prisoner's counsel to be present at the bail hearing. It is immaterial whether the counsel’s professional remuneration has been paid or not."
It went on to even say that failure of a counsel to turn up at a bail hearing may even constitute a misconduct.
Dismissal of lis for non prosecution: Civil vs Criminal Cases
The Court remarked that the practice of dismissal of a lis for non prosecution has been evolved by courts over long years for efficient administration of justice. Noting that it is a sound practice which has proved its efficacy in removing unnecessary cases which clog the legal system.
"No litigant has a right to unlimited draught on the time of the court. Non appearance of counsel can also lead to an inference that the lis does not survive, or that a litigant does not wish to prosecute the same. Dismissal of such cases for default enables the judicial system to place surviving cases in which the litigants are interested on the courts’ dockets."
The Court however, was of the view that is important to bear in mind the distinction between a lis where civil rights are adjudicated, and a criminal case in which the prisoner’s personal liberty is engaged.
"A litigant can elect to waive civil claims by not prosecuting them. However, citizens cannot relinquish their personal liberty even by choice. Personal liberty is irrevocably vested in every citizen by the Constitution and the courts are its permanent guardians," the Court said.
Absence of the counsel at a bail hearing deprives the prisoner-applicant of all ability to influence the outcome of a proceeding where his personal liberty is at stake and hen a bail application is dismissed for non prosecution the prisoner’s period of detention is enlarged by default even as he goes unrepresented and unheard, the Court pointed out.
Highlighting the plight of such prisoners, the Court referred to Gobardhan Singh and another v. State of U.P. and remarked:
"Prisoners who apply for bail often live in poor and destitute circumstances. On many occasions they do not have effective pairokars who can oversee the presence of counsels at bail hearings."
Personal liberty is the fount of all rights and protection of liberty is the crown of the court process, the court emphasised.
"While deciding bails the courts have to be cognizant of the entitlement of prisoners to legal aid, and also alert to their right of hearing. In the event of non appearance of a prisoner’s counsel the court may appoint an amicus curiae to represent the prisoner and proceed with the hearing of the bail."
CASE TITLE: Maneesh Pathak vs State of U.P
CASE DETAILS: CRIMINAL MISC. BAIL APPLICATION No. - 18536 of 2020
CORAM: Justice Ajay Bhanot
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