Legal Provisions of Section 304 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Legal aid to accused at State expense in certain cases:
The section confers on the accused the right to legal aid at the expense of the State Government in cases triable by a Court of Session and empowers the State Government to extend this facility to other cases. The section underlies the principle that indigence of the accused person should not be a ground for denying fair trial or equal justice.
ADVERTISEMENTS:
The Court, before whom the accused appears, is under a duty to inform the accused that if he is unable to engage the services of a counsel on account of poverty or indigence, he is entitled to obtain free legal service aid and under the Legal Services Authorities Act, 1987.
With the enactment of this Act, the right to legal service for defence of indigent accused persons has been recognised far beyond the scope of Section 304 and it extends to appeal against the order of conviction of such accused in the High Court as also an appeal against his acquittal filed by the State in the High Court.
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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.
ADVERTISEMENTS:
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.
Ir. Rajiv Gandhi Murder case, the lawyers defending the indigent accused persons who were appointed by the State were paid Rs. 50/- a day as their fees as per Rule 9 of the Legal Aid to Poor Accused Rules, 1976. They moved the High Court to raise their fees making it at par with the prosecution lawyers on the principle of equal pay for equal work.
Rejecting their petition, the High Court of Madras held that the rule of equal pay for equal work was not attracted in the instant case because the criteria for the appointment of prosecution lawyer is different from those of defence lawyers appointed under the legal aid services scheme for the indigent persons.
ADVERTISEMENTS:
The Court further held that the fees payable to each defence lawyer appointed for to defend the indigent accused persons appeared to be quite reasonable, just and fair in the circumstances and therefore, it did not warrant any interference by the Court.
The High Court of Rajasthan has ruled that an accused having sufficient means cannot claim for free legal aid assistance of a lawyer at the expense of the State, particularly when he has already engaged a defence lawyer of his own choice.
The Calcutta High Court in Rajender Singh v. State of West Bengal, held that depriving the accused persons of their right to produce evidence and not providing them opportunity to cross-examine the prosecution witnesses will be gross violation of mandatory provisions of Section 304 of Cr. P.C. which may result in quashing of the entire proceedings and the conviction of the accused may be set aside. In such a case, the appellate Court may also order re-trial of the case if it deems necessary in the interest of justice.