New Delhi: The decision to “boycott” court proceedings by former CM Arvind Kejriwal in the liquor policy revision petition by CBI has come at a time when the high court is about to start dealing with the “merits” of the case and begin hearing arguments of prosecution and defence.Justice Swarana Kanta Sharma, while shooting down the petitions seeking her recusal from the case, had kept the matter for later this week, indicating she intends to start going into the substantial questions raised by the CBI, having dealt with the recusal applications.With Kejriwal announcing he won’t participate in further proceedings, there is a high probability HC may exercise the option to appoint an amicus curiae (friend of the court) to ensure the matter gets heard and decided on merits where a fair evaluation of all legal contentions is made.A key reason is the Supreme Court’s clear mandate – reiterated in several rulings – that criminal revision/appeals can’t be “dismissed in default” that is there is no procedure to end the case without hearing the parties even if they remain absent. It has stressed the revision/appeal has to be decided on merits, casting it as the duty of the court. “No order can be passed without hearing the affected party as it deals with his rights and liabilities. So, an opportunity has to be given. Constitutional courts have laid down that a ‘reasonable opportunity’ can be given, which is the duty of the court concerned. However, the same can’t be forced upon the party. It is up to the respondent to best avail that opportunity but if he doesn’t, the court is still under obligation to decide on merits,” explained a retired HC judge.The jurist also pointed out that in revision jurisdiction, the court is not to substitute the trial court’s views with its own, but to rectify any “blunder or perversity” in the order challenged before it. Since none of those discharged have filed any written submission or reply to the CBI’s plea, the court may choose to first hear arguments by defence lawyers in this regard. Participation of the affected party is needed to make sure a matter gets decided on merits, but if he chooses not to appear, an amicus can be brought in to go through the record and present before court material relating to the accused/respondent, according to legal principles enunciated by SC..
“In cases where the accused/respondent cannot afford a lawyer, the court can appoint a lawyer for the person. But here, since the former CM has announced he will boycott proceedings, the court can force his presence by way of a bailable or non-bailable warrant. There is also a likelihood it may appoint an amicus to ensure all strands of legal arguments on behalf of accused, are heard and examined. Usually, senior advocates who enjoy a great legal standing in the bar and are known experts in their field are roped in by courts in such matters,” a serving judge told TOI. He recalled a recent case where a person facing terror charges was given an amicus from legal aid services because the accused refused to hire a lawyer. Former additional solicitor general Aman Lekhi said, “A judge has many options and the discretion to decide if to take cognizance of this as contempt or not. But, if good sense prevails, as I believe it will, the court may choose to disregard the letter, inappropriate as it is, because this is not the proper way to raise legal grievances. There is a due legal process to address grievances, and all mechanisms are in place. The system is functional. It was open to him to follow those steps and seek a remedy under the law, which he has chosen not to do. In my opinion, it is not only distasteful and inappropriate, but also unlikely to yield any favourable outcome for him on any parameter.”
