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Amicus curiae could be a way out to conduct Ajmal's trial
December 30, 2008 19:55 IST
The deadlock over appointment of a lawyer for Mohammad Ajmal Amir Kasab [Images], the lone surviving terrorist of November 26 attacks here, could be solved by appointment of amicus curiae, going by the Bombay High Court's recent judgment.
So far, Ajmal has no lawyer of his own. The one appointed by the Magistrate's court --advocate Dinesh Mota --
refused take up his brief.
Ajmal has sought legal aid from Pakistan High Commission but to no avail. The Supreme Court, in earlier cases, has held that if an accused goes undefended, the trial has to be set aside.
"In such a situation, Amicus Curiae could be a solution," chief public prosecutor of the Bombay High Court Satish
Borulkar told PTI.
In fact, in one of the cases where advocate Borulkar appeared for the state, the Bombay High Court has said that if
the accused did not engage a lawyer, it is trial court's duty to appoint an amicus curiae.
Amicus curiae, which is a Latin term, literally means `friend of the court'. He/she who does not represent any of
the sides but assists the court.
Earlier this year, a murder case in which two women have been convicted and sentenced to death landed up in the High court for confirmation of the death sentences.
Leena Deosthali and her daughter Deepti Deosthali were accused of abducting and killing one Dr Deepak Mahajan in July 2006. When the trial began in Pune seesions court, the accused wished to conduct their defence themselves.
The trial court appointed a lawyer for them but the accused did not allow him to represent them. At the end of the
trial, both were found guilty and setenced to death.
When the case came up before division bench of Justices Bilal Nazki and Ashutosh Kumbhkoni, the judges were shocked by the manner in which trial had proceeded.
"Merely offerring legal services to both accused was not enough to meet the requirements of fair trial," the judges
observed, eventually directing the lower court to record testimonies of some additional witnesses.
Even though Deosthalis had rejected the legal aid, the "trial court should have at least appointed an amicus curiae
to find out the truth," the High Court said in the order on October 15 this year.
"Trial courts are not mere spectators or umpires...courts have to participate in the proceedings to find out the truth,
the High Court has said.
Advocate Borulkar said Ajmal's case was quite unprecedented as in this case the accused has not rejected legal aid but a lawyer has refused to aid him. "If he himself were to reject legal aid, it would have been a different case," he said.
A few lawyers have come forward to defend Ajmal, including former Additional Advocate General of the state P Janardhan.
One of them, advocate K Lam, has even handed over Vakalatnama to the police to obtain Ajmal's signature on it.
Lam's house in South Mumbai [Images] was vandalised by Shiv Sainiks earlier when the news of his offer to defend Ajmal