Right Of An Accused Person To Defend Himself Under Cr.P.C, 1973

By | September 12, 2019
Right Of An Accused Person To Defend Himself Under Cr.P.C, 1973

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Right Of An Accused Person To Defend Himself Under Cr.P.C, 1973 | Overview

The article discusses Right Of An Accused Person To Defend Himself Under Cr.P.C, 1973. The principle of audi alteram partum requires that no one shall be condemned unheard. This is a principle of natural justice which connotes that everyone has the right to be heard. There cannot be a just decision without hearing the stories of both sides. To uplift this principle, Section 303 of the Code of Criminal Procedure, 1973 vests upon a person accused of any offence, the right to be defended by “a pleader of his choice”[1].

Scope and Application of § 303

The section recognizes the right of any person brought before a criminal court to answer any charge or accusation to be defended by a lawyer that he pleases. A person is said to be accused only if a process has been issued against the person or if any proceeding has been instituted.

In Kuthu Goala v. State of Assam[2], the court observed that when an accused is taken under remand by the police under Section 167 of the Cr.P.C, this amounts to a proceeding and the right, hence, begins from this moment onwards. It was further held that recording of confession before the Magistrate is also a proceeding, and it is the duty of the Magistrate to inform the accused of his right to consult a pleader.

The right to consult and be defended by a legal practitioner is now recognized as a Fundamental Right under Article 22(1) of the Constitution. In Hansraj v. State[3], the court observed that arrest and trial in a jail in hot haste on the next day without any opportunity to defend himself or informing the accused of Fundamental Right under Article 22(1) is the denial of that right.

Further, this section has to be read with Section 273, Cr.P.C. the provision requires that a trial must be conducted in front of the accused and his pleader. This ensures that the accused can hear the evidence to be used against him and reply appropriately when given the opportunity to explain.

Section 303 further contemplates that an accused in custody must have a reasonable opportunity to interact and communicate with his pleader for any legal advice as to his defence. The courts have observed that the right to have an advocate or to be represented by an advocate begins from the time of the arrest itself.

The communication between the accused and his pleader may take place either in the presence of the police officer or in confidentiality. In general, a criminal case; either trial or appeal or revision, should not be decided in the absence of the accused or his pleader or any person specifically authorized by him to represent him. In Md. Sukur Ali v. State of Assam[4], the apex court observed that a criminal case decided in the absence of the accused violates Article 21 of the accused person.

Truth in Sentencing the Accused

Truth in sentencing is an apparently simple concept, with considerable rhetorical power, if only because it would be hard to support its opposite: dishonesty in sentencing. On closer examination, however, the concept is more ambiguous than it might seem at first glance. Truth in sentencing originally referred to the difference between the sentence imposed by a court and the time actually served by the offender.

Proponents of truth in sentencing, therefore, tended to attack early release of sentenced prisoners. Truth in sentencing in its original sense is often seen as a policy concern that is typical of common law jurisdictions. Certainly, it has achieved much prominence and arguably had its greatest impact on penal policy in the United States of America, Australia, the United Kingdom and elsewhere in English-speaking world.

The right to defend has played a limited role, in the case of life sentences, for example, where the courts or even the legislature have sometimes been criticized for setting minima that are too low to reflect the severity of a sentence of life imprisonment.

Mandatory Requirements to be an Eligible Pleader

Order III Rule 4 of the Code of Civil Procedure, 1908 requires that every person who desires to be represented by an attorney or pleader must have an instrument in writing that approves that the person is entitled to represent the person who desires to be represented by the person by is going to represent the person. This document is commonly ushered as the Vakalatnama whereby the person who hires the attorney empowers him to take actions or do any act legally allowed on his behalf.

The pleader who is so hired and willing to represent the party to be represented must file before the appropriate court a memorandum of appearance which is a document where the attorney who represents the person who wants to be represented claims before the court that he has been appointed by the person as his pleader and that he has the power of attorney to take any action and appear on his behalf.

With respect to representations of accused or other persons by requisite pleaders specifically before the subordinate courts, the Hon’ble High Court has issued the following guidelines:

  • The Vakalatnama, through which a pleader is empowered to represent his client, must contain the name of the client in full and the name of the lawyer who shall represent. If there is more than one person to be represented, the Vakalatnama must contain the names of all such persons.
  • Proof required when power of attorney not executed by the principal—When such appointment or power is not executed by the principal himself, but by some person claiming to appoint or give authority on his behalf, the pleader will not be recognized by the Court without proof that such person was duly authorized by the principal to execute such appointment or power.
  • Power of attorney or memorandum of appearance in cross-appeals—In cross-appeals a leader who has already filed a power of attorney or memorandum-of-appearance for the appellant shall not be required to file another power-of-attorney or memorandum-of-appearance for his client as a respondent in the cross-appeal.
  • Date of engagement—the power of attorney or memorandum of appearance shall be filed in Court by the Pleader shortly after his engagement, indicating the date of his engagement.

Pleaders for indigent accused

When the law is made the lawmakers do not deliberate on whom rights should be vested and whom it should not. The right to be defended by a pleader of one’s choice is enjoyed not only by those who can afford a lawyer for legal assistance but also those indigent accused persons who cannot afford a lawyer. To ensure that no one is condemned unheard, the legislators enacted section 304 right after Section 303 of Indian Penal Code.

Section 304, bestows a duty upon the state to provide legal aid in the form of lawyers to those persons who are facing criminal trial and are not able to afford an attorney to represent their stake in the court. This section bestows upon a right to the accused persons without sufficient means to be defended fulfilling the principle of natural justice “Audi Alterum Partum.

The defence taken by the help of the pleader is at the expense of the state. The rules regarding the fees of such attorney are made by the High Court of the respective state with the previous approval of the state.

Then the question arises is when is this right to legal aid of the accused begins from.

This right is available to the accused as soon as he is arrested for a cognizable offence by the police. However, this pleader shall only be at the liberty to represent the accused at the time of court proceeding. It is not available during the time of interrogation by the police.

In Md. Ajmal Kasab case[5], the accused demanded a pleader from his home country, however when the accused realized that no legal aid was forthcoming then he demanded a pleader from India and that was immediately provided for, and this was held to be not in violation of any constitutional rights.

This provision also derives Its importance from the rights envisages in the constitution of India, under Article 21 read with Article 39A, it imposes a duty upon the state to provide for legal aid to the accused. This right of the accused of free legal aid is reasonable, just and also implicit under Article 21 of the Constitution as also iterated in Khatri v. State of Bihar[6].

This right extends during all times, whether when the accused is produced before the magistrate, or remanded back or during the filing or arguing appeals or Special leave petition before the Apex court. And it is a duty and the obligation of the magistrate to inform the accused of his right to engage a legal aid at the expense of the state government in cases of poverty or indigence.

[1] §303, Cr.P.C, 1973.

[2] Kuthu Goala v. the State of Assam, 1981 Cri. L.J 424 (Gau).

[3] Hansraj v. State, AIR 1956 All 641

[4] Md. Sukur Ali v. the State of Assam, AIR 2011 SC 1222.

[5] AIR 2012 SC 3565

[6] AIR 1981 SC 928

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