Dismissal Of Bail Application On Account Of Absence Of Counsel Is Contrary To Rights Of Prisoners: Allahabad HC

The Allahabad High Court has held that the 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.

The Court observed that in the event of the 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.

A Single Bench of Justice Ajay Bhanot said, “Prisoners have no remedy against absentee counsels and little control over the adverse situation that follows. … In this wake, 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 Bench noted that while deciding a bail, the Courts must be cognizant of the entitlement of prisoners to legal aid, and also alert to their right of a hearing.

“Personal liberty is the fount of all rights. Protection of liberty is the crown of the court process”, the Court further said.

Advocate Omar Zamin was appointed as amicus curiae to represent the applicant and assist the Court while AGA Rishi Chaddha represented the State.

In this case, the applicant had prayed to be enlarged on bail in connection to the offence under Section 307 of the IPC. The applicant was in jail since March 20, 2019, and his bail application was thereafter rejected by the Trial Court. None appeared on behalf of the applicant in the High Court to press the bail application.

The High Court in view of the facts and circumstances of the case observed, “The right to bail is derived from statute but cannot be isolated from constitutional oversight. … 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.”

The Court further observed that prisoners who apply for bail often live in poor and destitute circumstances and on many occasions, they do not have effective pairokars who can oversee the presence of counsels at bail hearings.

“ ...the applicant is entitled to be enlarged on bail. … Let the applicant- Maneesh Pathak be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below”, directed the Court.

The Court noted that the arguments made by the amicus curiae on behalf of the applicant could not be satisfactorily refuted by counsel for the State.

Accordingly, the Court granted bail to the applicant.

Cause Title- Maneesh Pathak v. State of U.P.

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