Bail Application Cannot Be Dismissed Simply Due To Non-Appearance Of Counsel; Amicus Curiae Should Be Appointed - Allahabad HC Clarifies

The Allahabad High Court Bench of Justice Ajay Bhanot has held that the dismissal of a bail application for non-prosecution on account of absence of counsel is impermissible and 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.

Counsel Omar Zamin was appointed as amicus curiae to represent the applicant.

In this case, the applicant had preferred a bail application but no one appeared on behalf of the applicant to press the application. The order sheet disclosed that the counsel for the applicant had not appeared before the Court even in the past.

The question before the Court was whether the bail application should be dismissed for non-prosecution, or an amicus curiae should be appointed to represent the applicant, and the matter be heard on merits.

In that context, the Court observed 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. In furtherance, it was said that "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. Failure of a counsel at to turn up at a bail hearing may even constitute a misconduct."

Stressing that personal liberty is irrevocably vested in every citizen by the Constitution, the Court observed that the "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. When 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 before the court."

Noting that prisoners have no remedy against absentee counsels and little control over the adverse situation that follows, the Court observed that in these circumstances, the prisoner becomes a victim of "deserved want" within the meaning of Section 12(e) of the Legal Services Authorities Act, 1987. Sch a person is entitled to legal aid, and refusal of legal aid would entail denial of justice.

In light of the same, the Court observed 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".

In furtherance, it was observed that "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."

Subsequently, the Court heard the arguments preferred by the amicus curiae, and took the considered view that the applicant was entitled to be enlarged on bail.

Cause Title: Maneesh Pathak vs State of UP

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