Bhola Mahto vs The State of Jharkhand

Held: Having regard to the dictum of the three-Judge Bench in Anokhi Lal case and in order to curb the tendency of convicts to raise technical pleas of the nature which were advanced in the present case as not having knowledge of the appointment of amicus, 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 amicus and provide him necessary instructions so that his case is argued before the court effectively and meaningfully – In the event the convict contacts the amicus and provides instructions, there would ordinarily be no impediment in proceeding with hearing of the appeal – If, indeed, the convict desires to have his own counsel argue the appeal on his behalf and not the amicus, the court may hear such counsel in addition to the amicus – However, if the service report indicates that the convict was not found at the address or that he refused to accept notice despite being present, it would amount to sufficient compliance if the notice is pasted on the outer wall of the premises, address whereof is mentioned in the cause title of the memorandum of appeal – 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 – This process would substantially serve the purpose of eliminating any plea of unfairness being raised before this Court if an appeal is disposed of upon hearing the amicus appointed by the court – Additionally, in a case of like nature where the appeal is listed two decades after grant of bail, this process would ensure obtaining of information as to whether the appeal survives for decision or stands abate – 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 – Of course, for a convict in custody who has committed an offence punishable with death or life imprisonment, the directions in Anokhi Lal have to be scrupulously followed apart from the relevant rules regulating the business of the courts concerned. [Para 23]

Legal Aid – Appellant-convict was on bail – His appeal was listed for hearing after being pending for more than two decades however, since no one appeared on his behalf, Division Bench appointed an advocate of more than 15 years’ standing as amicus curiae to assist the Court – However, no notice was issued to the appellant to the effect that his counsel was not appearing to prosecute the appeal and that an amicus had been appointed by the Division Bench – Division Bench set aside the conviction of the appellant u/s.302, IPC and the sentence of life imprisonment; conviction was altered to one u/s.304-Part II, IPC and the appellant was sentenced to 5 years rigorous imprisonment – Challenged by the appellant contending that there has been a gross failure of justice as the grounds which the appellant had raised in his memorandum of appeal filed in the High Court were not urged by the amicus; instead, he urged a ground which the appellant had not raised in such memorandum and as a result, the Division Bench was disabled from examining whether the appellant had set up a strong case for acquittal:

Held: High Court in its anxiety to deliver justice without further delay and to decide the appeal expeditiously upon hearing the 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 – 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 – This is more so, because, assistance in the form of legal aid should be real and meaningful and not by way of a token gesture or to complete an idle formality – None can possibly doubt the High Court’s genuine intention to render legal assistance to a non-appearing convict by appointing an amicus on his behalf to assist the court render justice but, perhaps, justice would have been better served if an intimation by way of a notice been sent, bearing in mind that the appeal was listed for the first time for hearing twenty-one years after the appellant was released on bail – Matter remanded for hearing of the appeal de novo – Impugned order set aside. [Paras 14, 15]