Ex parte hearing, disposal, conviction or sentences are concepts unknown to criminal law and hence neither trial nor appeal against conviction or acquittal could be conducted in the absence of the counsel for the accused, the Madras High Court Bench here has said.
Justice P. Devadass made the observation while reversing the dismissal of a criminal appeal by a Sessions Court in Tirunelveli on December 1, 2015. The appeal, preferred by a person convicted by a Judicial Magistrate in a cheque bounce case, had been dismissed for default. “As per Article 22(1) of the Constitution, a person accused of a crime is entitled to be defended by a lawyer of his choice. It is a fundamental right. It is a constitutional right. It is a basic human right. In the absence of counsel for the accused, conducting trial and punishing the accused is against law. It is not fair trial.
“If criminal proceedings are conducted in the absence of a lawyer, it is like conducting trial with a deaf and dumb person… Such right to be defended by a lawyer cannot be taken away or curtailed. It is the bounden duty of a Court to ensure availability of proper legal assistance to the accused,” the judge said. He went on to state that an accused has the right to be defended not only during trial but also in appeal proceedings. “There cannot be an ex parte judgment under criminal law. If an appeal is dismissed for default, it will result in conviction and sentence getting confirmed without a hearing.
“A civil suit can be dismissed for default but not a criminal appeal. So, the impugned judgment passed by the learned First Additional Sessions Judge is vitiated,” the judge said and directed the Sessions Court to restore the appeal and pass an order on merits after hearing the accused as well as prosecution.
