MD. SUKUR ALI versus STATE OF ASSAM

Citation: [2011] 3 S.C.R. 209 · Decided: 24-02-2011 · Supreme Court of India · Bench: MARKANDEY KATJU, GYAN SUDHA MISRA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2011] 3 S.C.R. 209 
MD. SUKUR ALI 
v. 
STATE OF ASSAM 
(Criminal Appeal No.546 of 2011} 
FEBRUARY 24, 2011 
[MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.] 
Administration of criminal justice: Right to be defended 
A 
B 
by counsel - Held: A criminal case should not be decided 
against the accused in the absence of a counsel - It is only 
C 
a counsel who is conversant with law who can properly defend 
an accused in a criminal case - Adjudication of a criminal 
case (whether a tn"al or appeal/revision) against an accused 
in the absence of a counsel would be violative of Article 21 
of the Constitution - In the absence of a counsel, for whatever D 
reasons, the case should not be decided forthwith against the 
accused but in such a situation, the court should appoint a 
counsel who is practicing on the criminal side as amicus 
curiae and decide the case after fixing another date and after 
hearing him - Constitution of India, 1950 - Article 21. 
E 
A. S. Mohammed Rafi vs. State of Tamil Nadu & Ors. AIR 
2011 SC 308; Man Singh & Anr. vs. State of Madhya 
Pradesh (2008) 9 SCC 542; Bapu Limbaji Kamble vs. State 
of Maharashtra (2005) 11 SC 412; Maneka Gandhi vs. Union 
of India AIR 1978 SC 597 - Relied on 
F 
Powell vs. Alabama, 287 US 45 (1932}; Gideon vs. 
Wainwright 372 US 335 (1963); Brewer vs. William 430 US 
387 (1977) ..... Referred to 
G 
Constitutional Law of India, Third Edition by Jurist 
Seervai - Referred to 
209 
H 
210 
SUPREME COURT REPORTS 
[2011] 3 S.C.R. 
A 
Case Law Reference: 
AIR 2011 SC 308 
Relied on 
Para 9 
(2008) 9 sec 542 
Relied on 
Para 10 
B 
(2005) 11 SC 412 
Relied on 
Para 10 
AIR 1978 SC 597 
Relied on 
Para 12 
287 us 45 (1932) 
Referred to 
Para 8 
372 us 335 (1963) 
Referred to 
Para 17 
c 
430 us 387 (1977) 
Referred to 
Para 18 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 
No. 546 of 2011. 
D 
From the Judgment & Order dated 01.06.2010 of the High 
Court of Guwahati, Assam in Criminal Appeal No. 137 of 2003. 
Fail S. Nariman, Azim H. Laskar. Bekash Kar Gupta, 
Abhijit Sengupta, Avijit Roy, Vartika Sahay (for Corporate Law 
E Group) for the appearing parties. 
The following order of the Court was delivered 
ORDER 
F 
1. Leave granted. 
2. Heard learned counsel for the parties. 
3. We have also heard Mr. Fali S. Nariman, learned senior 
counsel, who very kindly consented to assist us as Amicus 
G Curiae in this case in which an important constitutional and legal. 
question is involved. 
4. That question is whether in a criminal case if the counsel 
for the accused does not appear, for whatever reasons, should 
the case be decided in the absence of the counsel against the 
H 
MD. SUKUR ALI v. STATE OF ASSAM 
211 
accused, or the Court should appoint an amicus curiae to 
A 
defend the accused ? 
5. In the present case, it appears that Criminal Appeal 137 
of 2003 was decided by the Gauhati High Court on 01.06.2010 
in the absence of the counsel for the appellant- accused and 
the conviction was upheld. 
B 
6. Mr. Nariman, learned senior counsel, pointed out that 
earlier the counsel for the appellant-accused was Mr. A.S. 
Choudhury but the appellant changed his counsel and 
appointed Mr. B. Sinha in the year 2007 as his new counsel, 
C 
and this fact is corroborated by affidavit. Unfortunately, the name 
of Mr. Sinha as counsel for the appellant was not shown in the 
cause list when the case was listed and the name of the former 
courisel Mr. Choudhury was shown. In these circumstances, Mr. 
Sinha who was engaged by the appellant as his new counsel o 
did not appear. 
7. We are of the opinion that even assuming that the 
counsel for the accused does not appear because of the 
counsel's negligence or deliberately, even then the Court 
should not decide a criminal case against the accused in the 
E 
absence of his counsel since an accused in a criminal case 
should not suffer for the fault of his counsel and in such a 
situation the Court should appoint another counsel as amicus 
curiae to defend the accused. This is because liberty of a 
person is the most important feature of our Constitution. Article 
F 
21 which guarantees protection of life and personal liberty is 
the most important fundamental right of the fundamental rights 
guaranteed by the Constitution. Article 21 can be said to be 
the 'heart and soul' of the fundamental rights. 
8. In our opinion, a criminal case should not be decided 
against the accused in the absence of a counsel. We are 
fortified ·in the view we ar
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