Trial Court Must Appoint Amicus in the Absence of Defense Counsel, Right of Accused to Representation Is An Essential Part Of Article 21: Madras High Court

The Madras High Court recently stated that the right of the accused to be represented is a fundamental component of Article 21 of the Constitution, and even in cases when the accused’s attorney is not present, the court must appoint an Amicus Curiae to act on their behalf. The matter was between M/s.R.K.Emu Farms and others v. State Represented By Inspector of Police (CRL.A.No.295 of 2021) and was presided over by Hon’ble Mr. Justice D. Bharatha Chakravarthy.


The appeal was made in response to the Special Judge’s judgement in C.C. No. 07 of 2014, which found the first appellant firm, as well as the second and third appellants who were its partners, guilty of violating Sections 120B, 420, and 406 of the IPC as well as Section 5 of the TNPID Act. This judgment was issued on December 11, 2020.

The main argument put forth by the appellant was that when the case came up for argument before the trial court, the accused’s attorney was not present, and the court instead heard the Public Prosecutor’s case and found the appellants guilty without hearing any arguments on behalf of the accused or designating any Amicus Curiae. Therefore, such a conviction was erroneous.

The counsel for the appellants relying on various supreme court judgments including Subedar Vs. State of Uttar Pradesh contended that it is the right of the accused to be represented by a counsel and without the counsel being heard, the decision made by the trial Court is liable to be set aside.


The Hon’ble Court relied on Subedar Vs. State of Uttar Pradesh 

“In case the advocate representing the cause of the accused, for one reason or the other was not available, it was open to the Court to appoint an Amicus Curiae to assist the Court but the cause in any case ought not to be allowed to go unrepresented.” 

The trial court’s failure to nominate an Amicus Curiae and its decision to issue the order without consulting the accused led the court to reach this conclusion. The court noted that there was no question of allowing any recall motion by the Court when remanding the case because the recalling of witnesses had reached finality.  In addition, the court ordered that the appellant/accused be released on bail pending further Trial Court ruling. The accused were also free, if they so desired, to resolve the allegations and escalate the matter, according to the court.

The court noted that the right of the accused to be represented was an integral part of Article 21 of the Constitution and that even when the counsel for the accused is absent, the Court should not remain helpless and must appoint an Amicus Curiae to represent the accused.

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