Role of Defence Counsel under Criminal Procedure Code

Unlike the other functionaries under the Criminal Procedure Code, such as the police and the prosecutors, the advocates and the pleaders engaged in defending the accused persons are not in regular employment of the state and in most cases, they receive remuneration for their services from the accused persons. Nevertheless, they are also the officers of the court and are quite indispensable if a fair trial is to be given to an accused person.

This law note highlights the crucial role of defence counsel in India’s criminal justice system, emphasizing the right to legal representation and provisions for state-funded legal aid.

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Meaning of Defence Counsel/Pleader

By section 2(1)(q) of the Code of Criminal Procedure (CrPC) 1973, a pleader, in the context of legal proceedings in any court, refers to an individual duly authorized by prevailing laws to practice in that court. The designation encompasses individuals granted permission by the court to participate in such proceedings. A pleader includes any person entitled to represent and advocate for another in a court of law, such as an Advocate, a Vakil, or an Attorney of a High Court. A pleader constitutes a class of legal practitioners with the authority to present cases and arguments in a court of law.

T.C. Mathai vs Dist. & Sessions Judge, Thiruvananthapuram, 1999 Cri.L.J. 2092 (SC): In this case, the court emphasized that an agent who has the power of attorney holder can’t become a pleader for the party unless the party secures permission from the court to appoint him to act in such proceeding. Section 2 of the Power of Attorney Act can’t override the specific provisions of a statute requiring a person or party to do a particular act. Work in a court of law is a serious and responsible function. In the adversary system now being followed in India, both in civil and criminal litigation, the court must get proper assistance from both sides. The reason for making a provision that prior permission of the court must be secured before a non-advocate is appointed by the party to plead his cause in the court is to enable the court to verify the level of equipment of such person for pleading on behalf of the party concerned.

Section 303: Right of Person Against Whom Proceedings Are Instituted to Be Defended

Any individual accused of an offence in a criminal court or against whom legal proceedings are initiated under the provisions of CrPC has the inherent right to be represented by a pleader of their choosing.

Section 303 reinforces the Fundamental Rights guaranteed by Article 22(1) of the Constitution of India. It explicitly states that anyone facing accusations in a criminal court or subjected to legal proceedings under CrPC has the right to choose a pleader for their defence.

In situations where the accused lacks the financial means to engage a lawyer, section 304 mandates that, under specific circumstances, the court must facilitate the appointment of legal representation for the defence, and the State bears the expenses.

Article 39A of the Constitution acknowledges the imperative for the State to furnish free legal aid to economically disadvantaged individuals accused of offences. The provision underscores the commitment to ensuring all citizens have equal opportunities to access justice, regardless of economic circumstances. The principle is grounded in the notion that economic disabilities should not prevent any citizen from securing a fair and impartial legal defence.

The addition of the words “of his choice” at the end indicates that no advocate or pleader is to be imposed on the accused, and he should be permitted to be defended by a pleader or advocate in whom he has full confidence.

Tara Singh vs The State, AIR 1951 SC 441: The court emphasized that the Magistrate is duty bound to afford the accused the necessary opportunity to engage a lawyer. Therefore, the accused should have a reasonable opportunity, if he is in the custody of the police, to get into communication with his legal adviser to prepare his defence. This section applies not only to the person accused of an offence but also to any person against whom proceedings such as maintenance of wife and children or security for keeping the peace and for good behaviour, etc., are instituted under the Code.

Sandhu Charan Panda vs State, 1987 Cri. L.J. 1220 (Orissa): In this case, the court held that the accused is represented by a counsel in an appeal against conviction before the Sessions Judge. Still, the counsel does not appear when the case is called on for hearing; the judgment rendered by the appellate court with the assistance of the Public Prosecutor and on perusal of the material on record can’t be said to be vitiated. It can’t be set aside merely because the counsel for the appellant was not present.

R.M. Wasawa vs the State of Gujarat, AIR 1974 SC 1143: The Supreme Court has held that the Sessions Judge should view with sufficient seriousness the need to appoint State counsel for undefended accused in severe cases. Indigence should never be grounds for denying a fair trial or equal justice. Therefore, advocates competent to handle cases should be appointed. Sufficient time and complete papers should also be made available to them so that they may prepare the case, and the accused may also feel confident that the counsel chosen by the court has had adequate time and material to defend him properly.

Section 304: Legal Aid to Accused at State Expense in Certain Cases

Nevertheless, the right to legal counsel loses its significance when an accused individual cannot retain a lawyer for their defence due to poverty or impoverished conditions. In such cases, the indigent accused is susceptible to denying a fair trial, as they do not enjoy equal access to legal services compared to the opposing party. To address this issue to a considerable extent, the legal code has tried to provide a solution.

A Sessions Court can assign a pleader to defend an accused at the expense of the states if:

  • A pleader does not represent the accused, or
  • The accused has not had sufficient means to engage a pleader.

The High Court, with the previous approval of the State Government, makes rules providing for:

  • The mode of selecting a pleader for defence;
  • The facility is to be allowed to such pleader by the Courts; and
  • The fees payable to such pleader.

The State Government may direct the same provisions to apply to any class of trials before others.

Various schemes are in place to facilitate free legal aid for needy accused individuals. Notable among these are initiatives like the Legal Aid Scheme offered by the State Bar Association, the Legal Aid and Service Board, and the Supreme Court Senior Advocates Free Legal Aid Society. Furthermore, the Legal Services Authority Act of 1987 plays a crucial role by mandating the provision of free legal aid for those in need. Collectively, these mechanisms ensure that individuals with limited financial means can access legal assistance when facing legal proceedings.

Suk Das vs State of Arunachal Pradesh, 1986 SC: The Supreme Court has held that a conviction of the accused in a trial where he is not provided legal aid would be set aside as violative of Article 21 of the Constitution. But where the accused pleaded 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 were not vitiated because the Magistrate was fully satisfied that the plea was voluntary, authentic and genuine.

Jagmalram & others vs State of Rajasthan, 1982 Cri. L.J. 2314: The court emphasized that in case of the trial of a criminal case, which carries a sentence of imprisonment as and when the accused is produced or brought before a Magistrate, the Magistrate should make it known to the accused, that he has a right, a constitutional right of being represented by a counsel of his choice and if he has no means to engage a lawyer, then arrangement may be made for his defence.

Moolchand vs State, 1990 Cri. L.J. 682 (Del): The accused petitioner was convicted for various offences and was in custody for an entire period of one and a half, and no counsel was provided to him at the state’s expense. It was held to be a case of grave illegality. Therefore, while considering the revision application seeking modification of the sentence to the period already undergone, the court preferred to grant the relief prayed for instead of ordering a new trial.

State of Haryana vs Ram Diya, 1990 Cri. L.J. 1327 (SC): The court emphasized that wherein a criminal appeal, the counsel appointed by the court for the accused was not present at the hearing, and the appeal was disposed of without a hearing, it was held that the case must be remanded for a new hearing.

To sum up, in India, the defence counsel plays a significant part in the criminal justice system. The primary goal of defence counsel is to defend the accused person. Defence counsel includes an Advocate, a Vakil and an Attorney of a High Court.

Dinesh Verma
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