High Courts appointing amicus curiae (lawyers engaged by courts to help decide a case) to give legal assistance to unrepresented convicts must inform the convicts about such appointment before hearing the case further, the Supreme Court recently said [Bhola Mahto v. State of Jharkhand].

The Bench of Justices Dipankar Datta and SC Sharma observed that such intimation could help courts avoid having to deal with unnecessary legal challenges that convicts may raise later on.

"To curb the tendency of convicts to raise technical pleas ... we observe that, henceforth, 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 learned amicus and provide him necessary instructions so that his case is argued before the court effectively and meaningfully," the Court said.

The Court added that after notice, if the convict reaches out to the amicus and gives instructions on how the amicus should argue the case, the hearing can proceed without any impediments.

If the convict expresses his wish to have another lawyer represent him, the High Court could hear such a lawyer as well as the amicus, the top court added.

The Bench further observed that if the convict is not found at his address or he refuses to accept notice, it would be enough to post the notice at the outer walls of his stated address.

"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," the Court added.

The Bench said that this process could eliminate allegations that the convict was not properly represented by the amicus. Such a process would also help save time in cases that have been pending for a long time, the Bench observed.

"This process would ensure obtaining of information as to whether the appeal survives for decision or stands abated. 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," the Court explained.

The Court made the suggestion after a convict claimed that he was not aware of the Jharkhand High Court's decision to appoint an amicus to represent him in a murder case dating back to 2000.

The amicus had persuaded the High Court to modify the man's murder conviction to one for a lesser crime - culpable homicide not amounting to murder. Consequently, the amicus got the High Court to overturn the convict's life sentence. Instead, the High Court sentenced the man to 5 years of imprisonment.

The convict had been out of jail - due to a suspended sentence and later on bail - for two decades when the High Court pronounced its 2024 verdict on his 2003 appeal.

Since he had only served around 3 years of actual imprisonment, the convict was ordered to go back to jail to serve out the remainder of his modified 5-year sentence.

Aggrieved, the convict filed an appeal before the Supreme Court, where he argued that the amicus appointed to represent him did not argue all the grounds he wished to press. The convict contended that he should have been acquitted.

"We are reminded of the expression 'give him an inch and he will ask for a mile,'" mused the Supreme Court, while recounting this turn of events.

The top court held that the amicus could not be blamed for his approach, nor could the High Court's good intentions be doubted. It observed that the convict had not bothered to keep track of his appeal for years.

"The learned amicus came to be appointed by the High Court when it was noticed that the appeal remained pending for more than two decades and there was no representation from the side of the appellant despite repeated calls. In his wisdom, the learned amicus urged only one ground and succeeded. We see nothing wrong in the approach of the learned amicus. Also, the approach of the High Court endeavouring to expedite a decision on the appeal is not unjustified. Appellant was enjoying the concession of bail for two decades without being in any manner concerned about the fate of his appeal."

The Court also noted that it is common for convicts, who get their jail sentence suspended or get released on bail, to neglect court proceedings thereafter.

"Drawing from experience, we can record that on many an occasion, such convicts become untraceable. These convicts, enjoying the concession of bail and misusing it, need to be dealt with firm and strong hands by the courts," the top court added.

However, it acknowledged that as a precautionary measure, the convict should have been issued a notice informing him of the decision to appoint an amicus curiae to represent him.

"The High Court in its anxiety to deliver justice without further delay and to decide the appeal expeditiously upon hearing the learned 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. The 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," the judgment said.

The Court proceeded to remand the case back to the High Court for a fresh decision. The convict was ordered to be released on bail until the High Court decides the appeal.

"We hope and trust that a similar situation does not arise in future," the Court added.

[Read Judgment]