In a significant observation, the Allahabad High Court has said that a bail application should not be dismissed for non-prosecution due to absence of counsel for the applicant.
In such a condition, an amicus curiae be appointed and matters be decided on merit of the case, the court ruled on Tuesday.
“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,” Justice Ajay Bhanot said.
“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 said.
Describing the duty of lawyers in bail matters, the court said, “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. It is immaterial whether the counsel’s professional remuneration has been paid or not. Failure of a counsel to turn up at a bail hearing may even constitute misconduct.”
In this matter, applicant Maneesh Pathak had prayed that he be enlarged on bail in case no. 50 of 2019 registered at Bardah police station in Azamgarh district under Section 307 of IPC. He has been in jail since March 20, 2019. However, the court granted him bail on merit after appointing and hearing an amicus curiae.
“Even though the fees and expenses were not paid, the advocate should not, in our opinion, have refused to argue the case. It must be remembered by every advocate that he owes a duty to the court, particularly in a criminal case involving the liberty of the citizen, and even if he has not been paid his fees or expenses, he must argue the case and assist the court in reaching the correct decision,” the court said.
