Madras High Court. File
| Photo Credit: K. Pichumani
Arguing a criminal case before a trial court is like playing a cricket Test match for five days, whereas arguing the same case before an appellate court is comparable to an Indian Premier League (IPL) T-20 game, decided within a few hours, the Madras High Court has said.
A Division Bench of Justices G.R. Swaminathan and V. Lakshminarayanan drew the analogy while holding that an accused in a criminal case cannot be allowed to waive his/her fundamental right to a fair trial, and that a conviction cannot be recorded without hearing the defence arguments.
The judges dissented with the view – in another case – of Justice Vikram Nath of the Supreme Court, during his stint as a judge of the Allahabad High Court, that the prejudice caused to an accused by not hearing his/her arguments before the trial court could be cured by granting an opportunity of hearing at the appellate stage.
Differing viewpoints
“With the greatest respect and with utmost humility, we dissent from the said view. This is for more than one reason. Sections 234 and 235 of the Code of Criminal Procedure (CrPC) were not brought to the notice of the honourable judge. Likewise, the defence does not appear to have invoked Article 21 of the Constitution,” the Bench wrote.
The judges highlighted that Section 234 of the CrPC categorically states that after examination of prosecution and defence witnesses, trial courts must give an opportunity for the prosecution to sum up its case, and the accused or his/her pleader would also be entitled to reply to the prosecution’s case.
Further, Section 235 states that a judge shall pronounce the judgment only after hearing the arguments and points of law (if any). Relying upon Fowler’s Modern English Usage, the Bench held that the expression “if any”, found in parenthesis, in the legal provision would apply only to points of law and not to arguments.
If a defence counsel does not cooperate with a trial court and keeps postponing the process of advancing oral arguments even after the conclusion of the recording of evidence, the court should appoint an amicus curiae or a legal aid counsel for the accused, hear their arguments, and then pronounce the verdict, the Bench insisted.
Disagreeing with the proposition that the failure on the part of a trial court to hear the defence arguments could be cured before an appellate court, the Division Bench said: “That an appeal is a continuation of the original proceedings is more a technical truth. Reality is otherwise.”
Authoring the verdict, Justice Swaminathan wrote: “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.”
He said: “In the very nature of things, the appellate lawyer cannot argue before the appellate court like the trial lawyer does before the trial court. We take judicial notice of the fact that at least for the last quarter century, the Division Benches holding the criminal roster would dispose of at least four murder appeals on a given day.”
Right to fair trial
Also underlining the right to a fair trial has been recognised as a fundamental right under Article 21 (right to life and personal liberty) of the Constitution, the Bench said: “The corollary is that even if the accused wants, he cannot be allowed to waive this right. If he fails to exercise this right, it will be exercised on his behalf by making appropriate arrangements.”
The Division Bench held so while allowing a 2022 criminal appeal filed jointly by a father-son duo, Chinnavan alias Govindaraj and Thangabalu, who had been convicted and sentenced to life imprisonment in a murder case by a sessions court in Salem.
Though the appeal was listed before the Division Bench for the limited purpose of grant of leave to the two convicts to attend the wedding of the first convict’s daughter, who was also the sister of the second convict, the judges took up the appeal itself for disposal after finding that the appellants had been convicted without hearing the defence arguments.
Exasperated at the recalcitrant attitude exhibited by the defence counsel who did not advance arguments despite multiple adjournments, the trial judge had convicted the appellants on the basis of available materials. Not in agreement with such a course adopted by the trial court, the Division Bench set aside the conviction and remanded the matter to the trial court for pronouncing orders afresh after hearing both sides. Until then, the appellants were enlarged on bail.
Published – June 11, 2026 11:10 am IST
