Author Name:   Megha Maji

Right to free legal aid is one of the fundamental right that has been provided to every citizen of our country and has been enshrined in Art 22(1) of the Constitution of India. Criminal procedure code of 1973 has also incorporated this ideology in section 304 of the act.

Fair Trial under Section 304 of Criminal Procedure Code

Fair Trial

In the battle against crime and delinquency, state and its officers cannot on any account forsake the decency of state behaviour and have recourse to extra-legal methods for the sake of detention of crimes and even criminals. State should not insist on good behaviour from others when their own behaviour is blameworthy, unjust and illegal. Thus, in a democratic society even the rights of the accused are sacrosanct, though accused of an offence, he does not become a non-person. In the leading case of Kishore Singh Ravinder Dev v. State of Rajasthan, it was said that the laws of India i.e. Constitutional, Evidentiary and procedural have made elaborate provisions for safeguarding the rights of accused with the view to protect his (accused) dignity as a human being and giving him benefits of a just, fair and impartial trail.

Articles 10 of the UDHR declares that everyone entitle in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his legal rights and obligation and of any criminal charges against him. Articles 14(1) of the international covenants on civil and political rights provide that all people shall be equal before the court and tribunals.

There are various facets to the right to a fair trial. The Hon’ble Supreme Court in the case of Zahira Habibullah Sheikh & Anr vs State Of Gujarat has held that, “the principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices.... fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.” The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Most of these safeguards to ensure a fair trial are contained under the Code of Criminal Procedure, 1973 which contains and defines the procedure which has to be followed in criminal cases.

The concept of a fair trial cannot be limited to a statute and the Courts have gradually expanded it to include various aspects of criminal procedure. For instance the Supreme Court has also in the past transferred cases from one state to another when it is reasonably anticipated that the accused will not be afforded a fair trial or the court process may be interfered with by extraneous considerations.

Right To Free Legal Aid

The right to be defended by a legal practitioner, flowing from Article 22 (1) of the Constitution has further been fortified by the introduction of the Directive Principles of State Policy embodied in Article 39 A of the Constitution by the 42nd Amendment Act of 1976 and enactment of sub-section 1 of Section 304 of the Code of Criminal Procedure. Legal assistance to a poor person facing trial whose life and personal liberty is in jeopardy is mandated not only by the Constitution and the Code of Criminal Procedure but also by International Covenants and Human Rights Declarations.

Article 14 (3) (d) of the International Covenant on Civil and Political Rights entitles the person facing the criminal charge either to defend himself in person or through the assistance of a counsel of his choice and if he does not have legal assistance, to be informed of his right and provide him the legal assistance without payment in case he does not have sufficient means to pay for it.

Every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case.

In Maneka Gandhi v. Union of India, it has been held by a Constitution Bench of this Court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. “We are of the opinion that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution.

Section 304 in The Code Of Criminal Procedure, 1973

Legal aid to accused at State expense in certain cases-

(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.

(2) The High Court may, with the previous approval of the State Government, make rules providing for-

(a) the mode of selecting pleaders for defence under sub- section (1);
(b) the facilities to be allowed to such pleaders by the Courts;
(c) the fees payable to such pleaders by the Government, and generally, for carrying out the purposes of sub- section (1).

(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub- sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before Courts of Session.

The Cr.P.C. provides that in all criminal prosecutions, the accused has a right to have the assistance of a counsel and the Cr.P.C. also requires the court in all criminal cases, where the accused is unable to engage counsel, to appoint a counsel for him at the expenses of the State. Howsoever guilty the appellant upon the inquiry might have been, he is until convicted, presumed to be innocent. It was the duty of the Court, having these cases in charge, to see that he is denied no necessary incident of a fair trial. It is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 of Cr.P.C.

The Supreme Court in Sukh Das v. State of Arunachal Pradesh has held that a conviction of the accused in a trial in which he was not provided legal aid would be set aside as being violative of Article 21 of the Constitution. But where the accused pleads guilty without the assistance of a counsel under the legal aid scheme and was convicted by the Magistrate it was held that the trial and conviction was not vitiated because the Magistrate was fully satisfied that the plea was voluntary, true and genuine.

In Ram Awadh v. State of U.P, the Allahabad High Court held:
“The requirement of providing counsel to an accused at the State expense is not an empty formality which may be not by merely appointing a counsel whatever his calibre may be. When the law enjoins appointing a counsel to defend an accused, it means an effective counsel, a counsel in real sense who can safeguard the interest of the accused in best possible manner which is permissible under law. An accused facing charge of murder may be sentenced to death or imprisonment for life and consequently his case should be handled by a competent person and not by a novice or one who has no professional expertise. A duty is cast upon the Judges before whom such indigent accused are facing trial for serious offence and who are not able to engage a counsel, to appoint competent persons for their defence. It is needless to emphasis that a Judge is not a prosecutor and his duty is to discern the truth so that he is able to arrive at a correct conclusion. A defence lawyer plays an important role in bringing out the truth before the Court by cross-examining the witnesses and placing relevant materials or evidence. The absence of proper cross-examination may at times result in miscarriage of justice and the Court has to guard against such an eventuality. ”

Where in a criminal appeal the council appointed by the Court for the accused does not turn up at the time of hearing and the appeal is disposed of without hearing him, the case rightly deserved to be remanded for fresh hearing of the appeal.

Where in a sessions trial the accused made a request for being provided the services of a particular lawyer named by him at the State expenses as envisaged under Section 304 CrPC but the State provided another lawyer to defend him, the High Court of Madhya Pradesh held that it is not denied that an accused has the right to be defended by the lawyer of choice but when it comes to the appointment of lawyer for the defence of accused at State expense, it would be the choice of the Court and not of the accused to provide a lawyer for defending him. The Court is under no obligation to provide to the accused, the lawyer of his choice if he wants to be defended at the expenses of the State Government.

Case: Ramchandra Nivrutti Mulak Vs. The State of Maharashtra

This appeal was based on the fact that the appellant was not represented before the Sessions Court in his original trial under Section 302 of the Indian Penal Code (Punishment for murder) and other offences. A lawyer had been appointed to represent the appellant but had made an application to withdraw from the case. Despite rejection of this application by the Sessions Judge, the lawyer failed to appear for the trial. The trial proceeded without the appellant being assisted by an advocate or the court informing the appellant that he could avail of the services of a lawyer under the free legal aid scheme. As per their judgement dated 26 June 2008, the learned judges equated the above circumstances to instances where the accused has no representation.

The key issue identified during the appeal was: “If the lawyer appearing for the accused files application for withdrawal, which is rejected by the court, and the lawyer fails to turn up for trial, is a duty cast on the trial court to ask the accused to make alternative arrangement for appearance by lawyer or appoint a lawyer for the accused under legal aid scheme?"

Judgment
Supreme court in Suk Das and another Vs. Union Territory of Arunachal Pradesh, and Khatri and Others Vs. State of Bihar and Others, held that the conviction of an appellant not represented by a lawyer was clearly in violation of the fundamental rights of the appellant under Article 21 of the Constitution. The trial was accordingly held to be invalid and the conviction and sentence imposed against the appellant set aside.

Once a lawyer applies to withdraw and chooses not to appear, there is burden cast on the courts to inform the accused either to engage another lawyer or to inform him that he is entitled to free legal aid if he so desires… The trial, therefore in the instant case ought not to have proceeded with in the absence of the accused being informed of his right to be represented by lawyer.

The Magistrate or the Sessions Judge before whom an accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the service of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State.

A right to a fair trial includes the right for legal assistance. This is part of the right to life enshrined under Article 21 of the Constitution of India. A new trial was ordered and the learned judges reiterated the burden on the courts and the State to provide free legal aid. In doing so, they felt it would be appropriate for the State Government to reconsider rules for grant of legal aid and fix proper remuneration for advocates under the legal aid scheme. Instructions were given to forward a copy of the judgement dated 26 June 2008 to the Chief Secretary, State of Maharashtra for necessary compliance and to the Registrar General to place the matter before the learned Chief Justice for appropriate directions.

Section 304 of the Code of Criminal Procedure, is a provision providing for legal aid to the accused at State cost in certain cases. The High Court of Judicature at Bombay made certain rules under Section 304 regarding legal aid for accused without representation before Sessions Courts. These rules came into effect from October 1982 and cast a duty on the Presiding Officer to explain to every accused person without representation the provisions of the rules of Legal Aid as soon as the accused is produced before the Presiding Officer for the first time. If the accused confirms their income does not exceed Rs.5,000/- per annum, they shall be asked if they desire to submit an application for Legal Aid.

Conclusion-
"Equality, Justice and Liberty" is the trinity of fair trial recognised in the administration of justice of India where the affluent and the "lowly and lost" have the equality of access to justice in the administration of justice in general and the criminal justice system in particular. This fundamental principle of fair trial is the backdrop of the International Covenants, and enjoined in the Constitution of India as well as the criminal laws devising the criminal justice system of India. The beauty of the principles enshrined lies in the fact that much matter is decocted into small words. The thrust is imperative to means (criminal procedures) which must be trustworthy in order to have just ends.

The Constitution of India lays down a social policy concerning equal justice and free legal aid "by suitable legislation or schemes or in any other way, to ensure that opportunities securing justice are not denied to any citizen by reason of economic or other disabilities." This social policy aims at: "Indigence should never be a ground for denying fair trial or equal justice particular attention should be paid to appoint competent advocates, equal to handling complex cases, not patronising gestures to raw entrants at the Bar.

Section 304 of the Cr.P.C, 1973 enables the Session Courts to assign the pleader for the defence of the accused at the expense of the state provided he is unrepresented and the court is satisfied that he has no sufficient means to engage a pleader. The selection of such pleader, the facilities to be given to him by the court and his remuneration are to be governed by the rules that may be framed by the High Court in this regard with previous approval of the State Government. This facility also extends to any class of criminal trials before other courts as indicated earlier to try criminal cases in the State as it applies in relation to trials before Courts of Sessions.
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[1] ((2004) 4 SCC 158)
# 1999 Cr.L.J. 4083
# 1986, Cri.L.J. 1084
# 1981 Cri.L.J. 470.
# Art.18 of the Universal Declaration of Human Rights (UDHR); Arts. 14 and 15 of the International Covenant of Civil and Political Rights (ICCPR), 1966.
# Cr. P. C., 1973

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