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Judgment
D. Murugesan, J.—Heard. Mr. K.Chandru, learned senior counsel appearing for the petitioner and Mr.K.Doraiswmy, learned Public
Prosecutor for the respondents.
The petitioner was arrested on 20.8.2003 in Chennai in connection with the case in Cr.No.145/2003 for the alleged offences under Passport
Act. Final report was filed after investigation and was taken on file in C.C. No.736/2004 for the alleged offences u/s 12(1)(b) and (d)(e) and
12(1A)(a) of Indian Passport Act. As the petitioner is a Nepali citizen and he does not have sufficient means to engage a lawyer of his choice, he
made a request to the learned Magistrate to provide a lawyer of his choice at the cost of the State. For the said purpose, he filed a petition u/s 304
of the Code of Criminal Procedure. The said Section contemplates that in a trial before the Court of Session, in the event of 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 expenses of the State. In this context, the petitioner has also quoted the name of an advocate Mr.C. Vijayakumar,
having his office at l134, Thambu Chetty Street, Chennai-1 to defend him in the trial. The learned Magistrate, however, refused to accept his
request on the ground that the name of the said advocate is not included in the panel of advocates of that court. Hence, the present Writ Petition is
filed to issue a Writ of Mandamus to direct respondents 2 and 3 to nominate the said advocate to defend the petitioner in the said case, pending
before the 3rd respondent and to direct the 3rd respondent to conduct the chief examination afresh.
Mr.K.Chandru, learned senior counsel appearing for the petitioner would submit that though the application was filed u/s 304 of the Code of
Criminal Procedure, the right to engage the lawyer of the choice of the petitioner could be traced u/s 303 of the Code of Criminal Procedure,
which contemplates that any person accused of an offence before a criminal Court, or against whom proceedings are instituted under the Code,
may of right be defended by a pleader of his choice. Hence, the petitioner may be permitted to engage the services of the lawyer of his choise.
Mr.K. Doraisamy, learned Public Prosecutor appearing for the respondents, on the other hand, would submit that in exercise of power u/s 304
of the Code of Criminal Procedure, the State has identified names of Advocates and included them in the panel for each Court. The petitioner has
requested an advocate, by name, Mr.C. Vijayakumar, to defend his case, though his name has not been included in the Court before which the
petitioner is tried. Hence, the learned Public Prosecutor submitted that the petitioner cannot seek assistance of a lawyer in the event that the
lawyer''s name does not find a place in the panel for the Court in question.
I have given my due consideration.
The right of an individual for assistance of a lawyer of his choice could be traced to Articles 21 and 22 of the Constitution of India. Article 21
provides that no person shall be deprived of his life or liberty except in accordance with the procedure established by law. It is not enough that
there should be some semblance of procedure provided by law, but the procedure under which a person may be deprived of his life or liberty
should be reasonable, fair and just. The procedure which does not make available legal services to an accused person who is poor to afford a
lawyer or has not sufficient means to engage a lawyer and therefore, he is compelled to face the trial without legal assistance, cannot positively be
regarded as ""reasonable, fair and just"". The ""reasonable, fair and just procedure"" to an accused would be to make him available a legal service
through an advocate of his choice.
The Apex Court in Madhav Hayawadanrao Hoskot Vs. State of Maharashtra, while considering what is reasonable, fair and just procedure has
held as follows:
''Judicial justice with procedural intricacies legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of
equal justice under the law is on the cards which such supportive skill is absent for one side "" Free legal services to the poor and the needy is an
essential element of any ''reasonable, fair and just'' procedure "" without a service of a lawyer an accused person would be denied ""reasonable, fair
and just procedure.
Article 22(1) guarantees that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds
for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice. To ensure the above guarantee,
Article 39(A) was inserted as one of the directive principles by the Constitution (42nd Amendment Act 1976). The said Article directs'' The State
shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall in particular, provide free legal aid,
by suitable legislation or schemes or to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other
disabilities"". While considering the scope of Article 39(A) the Apex Court in the judgment reported in Hussainara Khatoon and Others Vs. Home
Secretary, State of Bihar, Patna, has held as follows: ''This Article also emphasizes that free legal service is an unalienable element of ''reasonable,
fair and just procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing
justice. The right to free legal services is, therefore, clearly an essential ingredient of ''reasonable, fair and just'' procedure for a person accused of
an offence and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage
a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate
to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so required, provided of course the accused
person does not object to the provision of such lawyer.
The above Article emphasis that the free legal service is an unalienable element of'' reasonable, fair and just procedure for without it a person
suffering from economic or other disabilities would be deprived of the opportunity for securing justice.
The Apex court in judgment reported in Khatri and Others Vs. State of Bihar and Others, while considering the same Article has also further
emphasised that the State Government cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading
financial or administrative inability as the State is under a constitutional mandate to provide free legal aid to an accused person who is unable to
secure legal services on account of indigence and whatever is necessary for this purpose has to be done by the State. The Apex Court in the said
judgment has also quoted RHEM VS MALCOLM 377 F Supp 995 wherein the Court said that the law does not permit any Government to
deprive its citizens of constitutional rights on a plea of poverty. The Apex Court also quoted th e words of Justice Blackmum in JACKSON VS
BISHOP 404 F Supp 2d 571 that ""humane considerations and constitutional requirements are not in this day to be measured by dollar
considerations"".
Infact, the Apex Court has also held in the above judgment that the Magistrate or the Sessions Judge before whom the accused appears, is
under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to
obtain free legal services at the cost of the State. As the directive principles of the State policy enshrined under Article 39(A) cannot be enforced
by a writ of mandamus, the accused must apply to the Court before him he is tried u/s 304 of Code of Criminal Procedure for assignment of a
pleader for his defence at the expense of the State The said Section contemplates that 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. Of course, Section 304 relates to trial before the Court of Session and it does not
relate to the trial in other Courts, particularly a Magistrate Court as in the case on hand, but it cannot be said that when the right of an accused
person is guaranteed to engage a lawyer of his choice for his defence, of course, on an application by him, by virtue of the obligation of the state
enshrined under Article 39(A), the State is obligated to provide legal assistance even in case of a trial before Magistrate or other Courts where an
accused after trial may be convicted and sentenced to undergo imprisonment or to pay fine. Considering the right enshrined under Article 22(1)
coupled with the directive principles of the State Policy enshrined under Article 39(A) of the constitution, the right of accused to engage a lawyer
of his choice at the expenses of the State before the Magistrate Court could be traced u/s 303 of Code of Criminal Procedure. The said Section
contemplates that any person accused of an offence before a criminal Court, or against whom proceedings are instituted under the Code, may of
right be defended by a pleader of his choice.
The State has taken steps for providing free legal aid to accused person and has formulated certain procedure to identify and empanell
advocates for each Court so as to enable the accused to engage an advocate, if he faces trial in that Court. The learned Public Prosecutor would
submit that the counsel Mr.C. Vijayakumar whose services are opted by the petitioner to defend his case, is not one of the advocates empanelled
in that Court and therefore, the accused cannot insist for his services to defend him. In my opinion, the said submission shall fall to the ground in
view of the constitutional mandate for providing free legal services under Article 39(A) of the Constitution whereby the State has an obligation to
render free legal service to the accused person who could not afford to defend his case. The said directive principles should be read in consonance
with Article 22(1) of the Constitution where the accused has got a right to defend his case through a legal practitioner of his choice. If the
procedure adopted by the State is to be accepted, the accused who faces the trial in a particular court, will be deprived of his right to engage a
lawyer of his choice and such procedure would not be ""reasonable, fair and just"". It must be kept in min d that when the State has an obligation to
provide legal assistance to accused person, who faces trial before Sessions Court, the same benefit must be extended to the accused person to
engage a lawyer of his choice before the Magistrate Court also u/s 303 of Code of Criminal Procedure.
The petitioner who is facing trial before the learned Magistrate, though has filed a petition u/s 304 of Code of Criminal Procedure, would be
entitled to engage a lawyer of his choice to defend his case,as such application could be considered an application filed u/s 303 of Code of
Criminal Procedure and the petitioner must be permitted to engage a lawyer of his choice viz., Mr.C. Vijayakumar to defend his case. It must also
be noted that the said Advocate viz., Mr.C.Vijayakumar, is also one of the Advocates who is empanelled by the State for providing legal
assistance.
For the reasons stated above, this Writ Petition is allowed. The Petitioner would be entitled to engage the services of Mr.C. Vijayakumar,
Advocate having his office at 134, Thambu Chetty Street, Chennai-1 to defend him in the trial and he will be paid the fees applicable to the counsel
nominated by the State Legal Services Authority, High Court Compound, Chennai-104. No costs. Consequently, W.P.M.P.No.2927 9/2005 is
closed.