State the provision of the right of accused for a pleader of his choice and for providing him legal aid by State Government. Whether a poor accused be granted legal aid at State expense? If so, when?

Question: State the provision of the right of accused for a pleader of his choice and for providing him legal aid by State Government. Whether a poor accused be granted legal aid at State expense? If so, when?

Find the answer only on Legal Bites. [State the provision of the right of accused for a pleader of his choice and for providing him legal aid by State Government. Whether a poor accused be granted legal aid at State expense? If so, when?]

Answer

Section 303 in the Code of Criminal Procedure, 1973 envisages the right of the person against whom proceedings are instituted to be defended. It states that

“Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.”

This section recognizes the right of any person brought before a criminal court to answer any charge or accusation to be defended by a lawyer that he pleases.

In Kuthu Goala v. State of Assam [1981 Cri. L.J 424 (Gau)] the court observed that when an accused is taken under remand by the police under Section 167 of the CrPC, this amounts to a proceeding, and the right, hence, begins from this moment onwards. It was further held that recording of confession before the Magistrate is also a proceeding, and it is the duty of the Magistrate to inform the accused of his right to consult a pleader.

The right to consult and be defended by a legal practitioner is now recognized as a Fundamental Right under Article 22(1) of the Constitution. In Hansraj v. State [AIR 1956 All 641], the court observed that arrest and trial in a jail in hot haste on the next day without any opportunity to defend himself or inform the accused of Fundamental Right under Article 22(1) is the denial of that right.

Further, this section has to be read with Section 273, CrPC the provision requires that a trial must be conducted in front of the accused and his pleader. This ensures that the accused can hear the evidence to be used against him and reply appropriately when given the opportunity to explain.

Section 303 further contemplates that an accused in custody must have a reasonable opportunity to interact and communicate with his pleader for any legal advice as to his defence. The courts have observed that the right to have an advocate or to be represented by an advocate begins from the time of the arrest itself.

Pleaders for indigent accused

When the law is made the lawmakers do not deliberate on whom rights should be vested and whom they should not. The right to be defended by a pleader of one’s choice is enjoyed not only by those who can afford a lawyer for legal assistance but also by those indigent accused persons who cannot afford a lawyer. To ensure that no one is condemned unheard, the legislators enacted section 304 right after Section 303 of the Indian Penal Code.

Section 304, bestows a duty upon the state to provide legal aid in the form of lawyers to those persons who are facing criminal trial and are not able to afford an attorney to represent their stake in the court. This section bestows upon a right to the accused persons without sufficient means to be defended fulfilling the principles of natural justice “Audi Alterum Partum”.

The defence to be taken with the help of the pleader is at the expense of the state. The rules regarding the fees of such attorneys are made by the High Court of the respective state with the previous approval of the state.

In the case of Hussainara Khatoon v. State of Bihar, it was held that if an accused is not able to afford legal services then he has a right to free legal aid at the cost of the state.

It is the duty of the State to see that the legal system promotes justice on the basis of equal opportunity for all its citizens. It must therefore arrange to provide free legal aid to those who cannot access justice due to economic and other disabilities (Article 39 A of the Constitution of India).

If the accused does not have sufficient means to engage a lawyer, the court must provide one for the defence of the accused at the expense of the state (Section 304 of the Code of Criminal Procedure,1973).

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