Section 304 CrPC: Legal aid to accused at State expense in certain cases

Chapter XXIV

Section 304 CrPC: Legal aid to accused at State expense in certain cases

access to justice, Fair trial, fundamental right, indigent accused, legal aid, right to counsel, state expense

New Law Update (2024)

Section 399 BNSS

TRIAL COURT

Court of Session, other Courts as notified by State Government

Punishment

Procedural – Trial / Charge

Cognizable?

Bailable?

Compoundable?

Bare Act Text

(1) 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.

(2) The High Court may, with the previous approval of the State Government, make rules providing for—
(a) the mode of selecting pleaders for defence under sub-section (1);
(b) the facilities to be allowed to such pleaders by the Courts;
(c) the fee payable to such pleaders by the Government, and generally, for carrying out the purposes of sub-section (1).

(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before the Courts of Session.

Important Sub-Sections Explained

Section 304(1)

This is the core provision mandating that if an accused person in a Sessions Court trial cannot afford a lawyer, the State must pay for their defence. It ensures that no one is denied justice simply due to lack of financial means.

Section 304(3)

This subsection allows the State Government to extend the application of the legal aid provisions, initially meant for Sessions Courts, to other classes of trials before other courts across the State. It broadens the reach of legal aid to more proceedings and courts.

Landmark Judgements

Hussainara Khatoon v. Home Secretary, State of Bihar (1979):

This landmark case established that the right to free legal aid at the expense of the State is an integral part of ‘reasonable, fair and just procedure’ implicit in Article 21 of the Constitution, thereby making it a fundamental right. The Supreme Court emphasized the importance of speedy trial and the provision of legal aid to ensure access to justice for indigent accused.

Khatri v. State of Bihar (1981):

Building upon Hussainara Khatoon, this case further clarified that the constitutional right to free legal aid extends to all stages of a criminal proceeding, from the moment of arrest, through remand, and trial. The Court unequivocally held that the State is under a constitutional mandate to provide legal assistance to poor accused persons.

Suk Das v. Union Territory of Arunachal Pradesh (1986):

This judgment reinforced the principle that the right to legal aid is not merely theoretical but must be practical and effective. It explicitly stated that it is the duty of the magistrate or Sessions Judge to inform an unrepresented accused of their right to legal aid and to provide it if they are indigent, without the accused necessarily having to apply for it.

Chapter XXIV