Right To Advance Oral Arguments U/S 234 CrPC A Fundamental Right; Trial Court Must Appoint Amicus If Defence Counsel Fails To Argue: Madras High Court

The Court observed that when defence counsel fails to argue the case, the trial court cannot proceed to pronounce judgment solely based on the available record and must instead appoint a legal aid counsel or amicus curiae to represent the accused.

The Court was hearing an appeal filed by two convicts who had been sentenced to life imprisonment for offences including murder. During proceedings arising out of an application for an interim suspension of sentence, the High Court noticed that the trial court had delivered the impugned judgment without hearing arguments on behalf of the accused after the defence counsel repeatedly failed to appear. The High Court confined itself to examining whether the conviction stood vitiated on account of the denial of an oral hearing to the defence.

A Division Bench of Justice G.R. Swaminathan and Justice V. Lakshminarayanan observed: “We reiterate that the right to advance oral arguments is not only a statutory right but also assumes the character of a fundamental right. This is because oral submission is a material part of a fair trial. If the accused does not avail this right, in the larger interest of justice, the trial Judge is obliged to appoint a legal aid counsel or an amicus.”

The Bench, while referring to K Muruganadam v. State (2021), further added: “When the counsel for the accused does not appear before the appellate court to argue the appeal, it cannot be dismissed for default. The court is obliged to proceed with the hearing of the case only after appointing an amicus curiae. The appellate court cannot dispense with oral hearing. It cannot simply dispose of the matter by perusing the record. If the appellate court itself is mandated to appoint an amicus curiae to represent the accused in the appeal, the same yardstick would apply to trial courts also with greater force. This is because of the highest importance accorded to oral advocacy in the adversarial system”.

Advocate S. Silambu Selvan appeared for the appellants, while Government Counsel (Criminal Side) R. Ganesh Kumar appeared for the State.

Background

The appellants, father and son, had been convicted by the III Additional District and Sessions Judge, Salem, and sentenced to life imprisonment for offences including murder. While considering an application seeking an interim suspension of sentence to enable them to attend a family wedding, the High Court noticed that the trial court had passed the conviction judgment after hearing only the prosecution and without hearing oral arguments from the defence side.

The trial court recorded that despite several opportunities, defence counsel had failed to advance arguments. Taking note of earlier directions of the High Court requiring expeditious disposal of the case, the trial court proceeded to pronounce judgment based on the available record after hearing the prosecution.

Court's Observations

The High Court examined Sections 234 and 314 of the CrPC and held that the statutory scheme expressly recognises the accused's entitlement to address oral arguments after completion of evidence.

The Court observed that this right transcends the realm of procedure and forms part of the constitutional guarantee of a fair trial under Article 21.

The Bench held: “This is not a mere right conferred on the accused. It is one of the facets of fair trial.”

Referring to precedents recognising fair trial as a fundamental right, the Court held that even if an accused does not seek to exercise the right to oral submissions, the court cannot simply treat it as waived and proceed to judgment.

The Bench analysed Section 235 CrPC and held that the provision clearly mandates that arguments must precede pronouncement of judgment.

The Court observed: “The language of Section 235 Cr.PC clinches the issue. It clearly states that the Judge shall pronounce the judgment after hearing the arguments. It means that the arguments should precede the pronouncement of judgment. Unless the trial Judge had heard the arguments on either side, he cannot proceed to the next stage (ie.,) pronouncement of judgment.”

According to the Court, the expression “if any” appearing in Section 235(1) applies only to “points of law” and not to “arguments”, making oral hearing indispensable before conviction or acquittal.

The Court further noted that while the Code places restrictions on adjournments sought for filing written arguments, no similar restriction exists in relation to oral submissions.

The Bench observed that Section 314(4) empowers courts to regulate oral arguments if they are irrelevant or unnecessarily prolonged, but does not authorise courts to dispense with oral hearing altogether.

The Court stated: “The heading of the Section is ‘Oral arguments and memorandum of arguments’... This difference in treatment of written and oral arguments indicates that the legislature prioritised oral advocacy over written briefs. Nowhere does the legislature grant the Trial Court the power to dispense with oral arguments altogether.”

The Bench held that where defence counsel fails to discharge professional obligations, the accused must be treated as effectively unrepresented and the court is required to make alternative arrangements.

The Court observed: “If the counsel for the accused fails to advance oral arguments and the trial Judge renders an adverse verdict, the accused approaches the High Court with considerable handicap. It is no consolation to him that he can present his case before the High Court.”

Relying on Supreme Court precedent requiring the appointment of an amicus curiae where counsel does not appear in criminal appeals, the High Court held that the same principle applies with even greater force at the trial stage.

Rejecting the State's contention that any defect could be cured by hearing the accused in appeal, the Court distinguished decisions concerning appellate proceedings and held that denial of oral hearing at the trial stage causes serious prejudice.

The Bench remarked: “While arguments before the trial court can be compared to a five day test match, the arguments before the appellate court are comparable to an IPL game. The canvas is spread wide only at the trial stage. There is scope for full length arguments only before the trial court. That does not mean that the trial Judge has to suffer arguments ad nauseam. Section 314(4) of Cr.Pc authorises the court to regulate the oral arguments, if they are not concise or relevant”.

The Bench observed that the trial stage provides the widest canvas for full-fledged arguments, whereas appellate advocacy is necessarily more limited. Therefore, the absence of defence arguments before the trial court cannot be treated as a curable irregularity.

The Court further reminded the defence counsel of their duty, stating that “if the counsel's authority has not been withdrawn by the accused, they are obliged to get along with the matter and not decline to argue the case”, concluding that “deliberate avoidance in this regard may even amount to professional misconduct”.

Conclusion

Holding that the trial court had pronounced judgment without hearing oral arguments on behalf of the accused, the High Court concluded that the appellants' right to a fair trial had been violated.

Accordingly, it set aside the conviction and sentence and remanded the matter to the trial court for fresh consideration after hearing arguments from both sides. The Court directed that if the accused fails to cooperate, the trial court shall appoint an amicus curiae to argue the case before pronouncing judgment.

The High Court clarified that it had not examined the merits of the prosecution case and that the remand was confined to ensuring compliance with the requirement of an oral hearing. The appellants were directed to continue on bail pending fresh adjudication.

Cause Title: Chinnavan @ Govindaraj & Anr. v. State

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