Defense Counsel (An introduction)

THE DEFENCE COUNSEL

The adversary system of criminal trial, which we have adopted, assumes that the State using its investigative resources and employing a competent  prosecutor would prosecute the accused, who, in turn, will employ an equally competent defense counsel to challenge the evidence of the prosecution. Therefore, both the Constitution of India and the Code confer on the accused person a right to consult and to be defended by a legal practitioner of his choice. The right to counsel would, however, remain empty if the accused due to his poverty or indigent conditions has no mean to engage a counsel for his defense. The indigent accused obviously stands the risk of denial of a fair trial when he does not have equal access to the legal services available to the opposite side.

To an extent, the Code  has attempted to find a solution to this problem. It has been provided that where, in a trial before the Sessions Court, 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 defense at the expense of the State. Further, the code has empowered the State Government to extend the application of the above provision to any class of trials before other courts in the State. It may also be noted that the Supreme Court has held the Article 21 of the Constitution implicity requires the State to make provisions for grant of free legal services to an accused who is unable to engage a lawyer on accounts of reasons such as poverty, indigence or incommunicado situation. The only qualification would be that the offence charged against the accused is such that on conviction, it would result in a  sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation. This goes far beyond Section 304 of the Code. At present there are several schemes in vogue which enable the indigent accused to get free legal aid. In this context, it may be pertinent to note that the  provisions of Legal Services Authorities Act, 1987 enable the judiciary to provide legal representation to indigent to accused. If the services provided are found wanting, the trial may be vitiated.

Reference:

  1. Criminal Procedure – R.V.Kelkar – Eastern Book Company
  2. http://www.lawinsider.com

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