The Allahabad High Court has observed that the Bar is the frontline sentinel of citizens’ rights and liberties, and the courts are the last bastion of constitutional law and justice.

A single-judge bench of Justice Ajay Bhanot made the observations while granting the bail plea of one Maneesh Pathak booked for attempt to murder.

Justice Bhanot noted that judges have an oath enshrined in the Constitution while lawyers have a pledge seared in their consciences to serve justice in the noble traditions of the legal profession. Translated in terms of lawyers’ duties to their clients it essentially means: Lawyers have to diligently prepare the briefs and vigilantly prosecute causes of litigants before the courts.

The Court noted that the counsel for the applicant has not appeared before the Court on successive dates of hearing in the past. Earlier the Court had called for the status report from the trial court as well as a report from the District Legal Services Authority.

Question arises for the Court that whether the bail application should be dismissed for non-prosecution or an amicus curiae should be appointed to represent the applicant and the matter be heard on merits. The right to bail is derived from statute but cannot be isolated from constitutional oversight, the Court said.

Good authority has long entrenched the right of an accused to seek bail in the charter of fundamental rights assured by the Constitution of India. A more detailed discussion on constitutional law anchors of right of bail which flows from Article 21 of the Constitution of India can be seen in Ajeet Chaudhary Vs. State of UP , Junaid Vs. State of UP. and another and Anil Gaur @ Sonu @ Sonu Tomar Vs. State of UP.

The constitutional moorings of the right of bail also bring the right of fair hearing within its ambit. Legal aid is an indispensable instrument to secure the preambled objective of justice to all citizens. The national capacity to deliver equal justice is girded by the institutional ability to provide legal aid. Legal aid was exalted as a fundamental right by constitutional courts even before it was vested as a statutory right by the legislature under the Legal Services Authorities Act. [On the issue of legal aid and the scheme of the Legal Services Authorities Act, 1987 see Anil Gaur (supra)].

Entitlement to legal services is provided for in Chapter IV of the Legal Services Authorities Act, 1987. Section 12 of the Legal Services Authorities Act, 1987 contains the criteria for giving legal services.

In bail applications, special care has to be taken by counsels since the applicant is in jail and the counsel is his sole representative before the court. Time honoured conventions of the noble profession cast an unconditional duty on the prisoner’s counsel to be present at the bail hearing. 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, the Court observed.

“Dismissal of a lis for non-prosecution is a practice evolved by courts over long years for efficient administration of justice. The practice is sound and has proved its efficacy in removing unnecessary cases which clog the legal system. No litigant has a right to unlimited draught on the time of the court. Non-appearance of counsel can also lead to an inference that the lis does not survive, or that a litigant does not wish to prosecute the same. Dismissal of such cases for default enables the judicial system to place surviving cases in which the litigants are interested on the courts’ dockets.”

The Court added that with the dismissal of a case for non-prosecution, the lis arrives at a terminus and is only subject to a restoration application being filed by the litigant and allowed by the court. It is important though to bear in mind the distinction between a lis where civil rights are adjudicated, and a criminal case in which the prisoner’s personal liberty is engaged. A litigant can elect to waive civil claims by not prosecuting them. However, citizens cannot relinquish their personal liberty even by choice. Personal liberty is irrevocably vested in every citizen by the Constitution and the courts are its permanent guardians.

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. 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. Prisoners who apply for bail often live in poor and destitute circumstances. On many occasions they do not have effective pairokars who can oversee the presence of counsels at bail hearings, the Court held.

Prisoners have no remedy against absentee counsels and little control over the adverse situation that follows. In these circumstances the prisoner becomes a victim of “undeserved want” within the meaning of Section 12 (e) of the Legal Services Authorities Act, 1987 who is entitled to legal aid. Refusal of legal aid to this class of prisoners would entail denial of justice , the Court further observed.

In this wake, dismissal of a bail application for non-prosecution on account of absence of counsel is impermissible, as it is contrary to the rights of prisoners to legal aid under the Legal Services Authorities Act, 1987 and violative of fundamental rights of prisoners guaranteed under Article 21 of the Constitution of India.

“Personal liberty is the fount of all rights. Protection of liberty is the crown of the court process. While deciding bails the courts have to be cognizant of the entitlement of prisoners to legal aid, and also alert to their right of hearing. In the event of non appearance of a prisoner’s counsel the court may appoint an amicus curiae to represent the prisoner and proceed with the hearing of the bail.”

In this wake without expressing any opinion on the merits of the case, the Court granted bail to the applicant.

The Allahabad High Court has asked the newly-appointed Advocate General of the state to take appropriate remedial measures so that under the POCSO Act, the government file of the bail application of the accused reaches the court. This is necessary so that the court can get cooperation and precious time of the court is not wasted.

A single bench of Justice Saurabh Shyam Shamshery passed this order while hearing a Criminal Misc Bail Application filed by Sanjay Kumar @ Pintu.

This is a case where the applicant is facing trial for the offence under POCSO Act also. In Junaid vs State of Uttar Pradesh and another, 2021(6) ADJ 511, important and relevant directions were passed by a Coordinate Bench this Court including to make High Court Legal Services Committee (HCLSC) constituted under Section 8A of the Legal Services Authorities Act, 1987 as one of the respondent in any bail application arising out of POCSO Act and thereafter counsels are appearing on behalf of said Committee with the solemn object that HCLSC will provide service of a legal counsel to the victim on free of cost, upon recommendations of Child Welfare Committee in bail proceedings before the Court.

Further to inform the Court about the legal status of the legal aid provided to the victim and the requisition of the Chief Welfare Committee.

Advocate Abhinav Jaiswal appeared before the Court on behalf HCLSC. However, the Court observed that the Committee’s endeavour to protect right of the victims under POCSO Act is not taking real shape as there is no communication between the Committee and the victim as well as there is no communication with Child Welfare Committee and Special Juvenile Police Unit which has various duties as provided under Rule 4 of Protection of Children from Sexual Offences Rules, 2020.

Abhinav Jaiswal submitted that he will take all endeavour to come up with better instructions on merit as well as instructions from the victim, in order to provide her legal assistance to put her case before this Court on free of cost under the provisions of Legal Services Authorities Act, 1987, otherwise appearance on behalf of HCLSC would be an empty formality.

The Court said that there is another aspect, which is a matter of concern. The files of State Law Officers are not with them despite the fact that their office is just across the premises of the High Court. This is a bail application which requires immediate consideration as it concerns the liberty of an accused. It is informed that the process of appointment of new Advocate General is completed, therefore, he is directed to take appropriate remedial measures to avoid any inconvenience so that valuable time of the Court may not be wasted.

“Taking a lenient view, put up this application on 30th May, 2022 with the hope that respondents shall take appropriate instruction as well as positively inform the victim/informant about the bail application and will provide her legal assistance in terms of Act, 1987 and as per directions passed in judgment of the Court in Junaid (supra) as well as by Supreme Court in Nipun Saxena and others vs Union of India and others (2019) 2 SCC 703 and also the decision of the Court passed in Criminal Misc Bail Application No 26289 of 2020 (Soib vs. State of UP) dated 04.08.2021 wherein direction was passed to frame guidelines so that State Law Officers may get reasonable time to prepare the case in order to give proper assistance to the Court while hearing bail applications and in other ancillary issues,” the order reads.

In pursuance of said order the Additional Advocate General filed an affidavit to the following effect:

“In order to give proper assistance to the Court while hearing the bail applications and any ancillary issue, all the State Law Officers (criminal), posted in the Court having jurisdiction of bail, are directed to prepare the cases one day before, after 04.00 PM in the State Office premises where files shall be duly provided, as directed by the Court, order dated 04.08.2021, passed in Criminal Misc Bail Application No 26289 of 2020 (Soib vs State of UP)”

However, it appears that the same is not followed in its letter and spirit, the Court noted.

A.G.A is directed to place a copy of the order before Advocate General, State of Uttar Pradesh, the Court ordered.