ORDER
Shacheendra Dwivedi, J.
1. In this revision, the petitioner has challenged the correctness of the order passed-by the trial Court rejecting the prayer of the petitioner to provide him a particular lawyer at the State expense as envisaged by Section 304, Cr.P.C.
2. Before dealing with the contentions advanced by both the sides, the narration of broad facts would be useful.
3. The petitioner is an under-trial prisoner facing a sessions trial for the offences registered under Sections 294 and 307/34, I.P.C. The petitioner in the trial Court filed an application under Section 304 Cr.P.C. submitting that he was financially weak and was riot in a position to arrange for the fee of a defence counsel as such, he be provided the assistance, for his defence, of Shri Jagdish Prasad Shrivastava, Advocate in the said trial at the State expense.
4. The application of the petitioner was partly allowed by the trial Court as, Shri A.K. Jain, Advocate was appointed for defending the accused-petitioner at the State expense, but the Court rejected the part-prayer of the petitioner that the services of a particular lawyer of, his choice, namely, Shri J.P, Shrivastava, Advocate, be provided to him, on me payment of his fee by the State. It is this part of the order, the correctness of which is challenged in this Court in the context of Article 22(1) of the Constitution with Sections 303 and 304 of the Cr.P.C.
5. Shri A.K. Shrivastava argued strenuously that it is fundamental right of an accused, enshrined in Article 22(1) of the Constitution, which provides 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 01 his choice.” It is further contended that the Criminal Procedure Code under Section 303 of Cr.P.C. also makes a similar provision. The Section 303 of the Cr.P.C. may be reproduced with profit.
“Right of person against whom proceedings are instituted to be defended. Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.”
It is also contended that the Criminal Procedure Code has made the specific provision that where an accused is neither represented by a pleader nor can afford to engage a lawyer, a duty is cast on the Court to provide the legal assistance to such accused by assigning a pleader, for his defence at the expense of the State. Developing the argument further, on the strength of the provisions of Sections 303 and 304 Cr.P.C., it is also contended that the Court cannot compel an accused to seek his defence through a lawyer, who is not of his choice.
6. The learned trial Court rejected the part-prayer of the petitioner of providing a lawyer of his choice namely, Shri J.P. Shrivastava on the ground that he was recently appointed as a lawyer on State expense in another matter and could not be repeated. As such, for giving chance to other lawyer, Shri A.K. Jain from the Panel of such Lawyers whose services could be provided to the unrepresented accused persons at State expense was assigned the work of defending the petitioner in the trial.
7. There can be no controversy that the Article 22(1) of the Constitution as also Section 303 of Cr.P.C. provide that the accused will have the choice in the matter of his counsel for his defence and it would be his right to get himself defended through such lawyer, yet the provisions of Section 304 cannot be construed to mean that the Court is under any legal obligation to permit the accused to exercise such choice even when the accused cannot himself engage a lawyer and the Court is required to provide him a counsel. In that situation, there is no right available to the accused to still choose the lawyer, whereas in the first situation he cannot be denied the right of his choice and cannot be compelled or forced to engage a lawyer or to get defended through a lawyer, not of his choice. It is the choice of the accused in that situation which has been honoured by the provisions of Section 303 of Cr.P.C. and Article 22(1) of the Constitution.
8. Article 22(1) postulates that when the accused is in a position to exercise the choice meaning thereby he is capable of engaging a lawyer of his choice, in that case no Court can deny him that right. Such right is inherent. But when an accused is not in a position to engage the services of any lawyer and prays that he be provided a lawyer at the State expense, it would be the choice of the Court and not of the accused to choose a lawyer for defending him at the trial.
9. Earlier to the coming into force of the present Code, the Code of Criminal Procedure, 1898, contained Section 340 which could be invoked by an accused in the matter of opportunity of legal assistance and it was found by the Supreme Court in Tara Singh v. The State, AIR 1951 SC 441 :(1951 (52) Cri LJ 1491), that:
“……..the right conferred by Section 340(1) does not extend to a right in an accused person to be provided with a lawyer by the State or by the police or by the Magistrate. That is a privilege given to him and it is his duty to ask for a lawyer if he wants to engage one and to engage one himself or get his relations to engage one for him. The only duty cast on the Magistrate is to afford him the necessary opportunity.”
But later in the present Code Section 304 was introduced, as it was found to be an essential requirement of a ‘fair trial’ to the accused. Section 304 does not prohibit a State lawyer to defend the accused at the State expense. The Court has been left to decide and appoint a lawyer which in its view may be suitable for defending the accused.
10. Article 22(1) has recognised a Very valuable right of an accused to seek his defence by exercising his choice in that matter. The Article sets a pattern similar to the American Constitution which requires counsel for all person charged with serious crimes, for their adequate defence, in order that such persons may be advised how to conduct their trial.
11. But the provision of providing a lawyer to an unrepresented accused has been introduced only in the present Code under its Section 304. In the Section, the Legislature in its wisdom has made no provision that in a situation when a lawyer is to be provided to an unrepresented accused at the State expense, he can still be permitted to exercise his choice.
12. Petitioner’s counsel Shri A. K. Shrivastava has placed implicit reliance on the authority of Calcutta High Court in Panchu Gopaldas v. State, AIR 1968 Cal 38 : (1968 Cri LJ 40), but the authority is of no assistance to the petitioner’s case. The principle enunciated therein was based on the provisions of Article 22(1) of the Constitution, earlier to the coming into force of the present Code of Criminal Procedure, which was also in a different fact-situation. It was on the consideration of Article 22(1) of the Constitution that the Court had taken the view that the Constitution guarantees the choice of a lawyer and that choice for the defence could only be of the accused. The principle propounded is not of general application to all situations. A situation would be different when the accused cannot engage a counsel and Section 304 of the present Code, which is the general law governing the procedure in criminal matters, deals with that situation, as is posed in the present petition.
13. The petitioner also banks upon the other authority of this Court in Himachal Singh v. State of M.P., 1989 Jab LJ 256 : (1990 Cri LJ 1490). It would be relevant here to refer to the facts of the cited authority as those would go to show that the authority does not support the contention advanced by the petitioner’s counsel, but rather runs counter to the submissions made.
“Under Article 22(1) of the Constitution of India, an accused person has been guaranteed with a Constitutional right to engage a counsel of his own choice. Similar provision finds place in the Code of Criminal Procedure, 1973 as well. Section 303 of the Code also gives this right to the accused person to engage a counsel of his own choice. The applicant-Himachal Singh has engaged Shri Bahadur Singh Dhaked who fell ill on 28-11-88. In view of the specific provision of Article 22(1) of the Constitution of India and specific provisions of Section 303, Cr. P.C., 1973 the Court has no power to order for engaging a counsel against the choice of the accused as the right guaranteed, is an inherent right of an accused person to engage a counsel for his choice. This being a valuable right, the Court are not supposed to interfere this right lightly when, in the instant case, it has not been found that under the garb of the said right, the accused is misusing the same.”
In the above circumstances, this Court had concluded that:
“In the instant case neither anything has been pointed out by the trial Court in the impugned order nor did the learned counsel appearing for non-applicant in the special case suggest that the applicant Himachal Singh under the garb of these two provisions misused that right in getting the case adjourned. Therefore, if the choice of the accused is not adhered to and the trial is concluded then such a trial in the opinion of this Court is infected with vice of unfairness and the same cannot be sustained in the eye of law, being against the philosophy of legal system.”
Considering the provision of Section 304, Cr. P.C. it was observed that:
“No doubt, provisions of Section 304, Cr. P.C. postulate that on State expense, legal aid to the accused be provided, but unfortunately, unbriefed lawyers being appointed. In such cases, a duty casts upon the Court to appoint counsel from young lawyers of marked ability and further must give them sufficient time to consult the accused so that the counsel must prepare the case to the satisfaction of his client and conduct the case effectively.”
14. The scheme of the Section 304 itself goes to show that the right of an accused to be defended by a lawyer of his choice was not reserved under the provision. It would be desirable to reproduce Section 304 of Cr. P.C.:
“304. Legal aid to accused at State expense in certain cases-
(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 fees payable to such pleaders by 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-section (1) and (2) shall apply in relation to trials before Courts of Session."
From the above section itself, it is apparent that the Legislature has not at all disclosed its intention or it can be gathered from the provisions of Section 304 Cr.P.C. that any right of choice of the accused, when he was not able to engage a lawyer, was at all reserved by the Legislature. On the contrary the Section only provides that the Court being satisfied on other conditions ‘shall assign a pleaser for his defence at the expense of the State’. Sub-section (2) has further made a provision that the High Court of the State may frame rules in relation to the mode of selecting the pleaders, the facilities to such pleaders and the fee that may be payable to them. The Section thus admits no scope for an interference that the accused shall be assigned by the Court, a lawyer of his choice, when he cannot engage a counsel.
15. Although, the Apex Court has enlarged the scope of legal assistance even to the custodial interrogation and it was held in Nandini Satpathy v. P. L. Dani, AIR 1978 SC 1025 : (1978 Cri LJ 968) that:
“If an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self-crimination secured in secrecy and by coercing the will, was the project.”
But the situation is to be treated differently when the accused is found by the Court unable to engage a lawyer and the Court has to provide a defence counsel to him. in such situation, there would be no infringement of Article 22(1) of the Constitution in not providing the right of choice if the Court provides a lawyer to the accused at the State expense. In that situation, there could be no real prejudice, as he himself was not to engage a lawyer, but legal assistance was being extended to him at State expense.
16. The situations in between the two Sections 303 and 304 are entirely different. But at the same time, it would not mean that if one the consideration of all the relevant circumstances and in view of the rules if any framed under Section 304, if it permissible and practicable that a lawyer of the accused’s choice could be provided to him at the State expense, yet he would not be or should not be so provided. The choice of the accused should also be considered if feasible, but that cannot be exercised by the accused as of right.
17. The Court is not under a legal obligation to permit such exercise of choice. It is the legal aid provided to an unrepresented accused at State expense. Any other construction of the provision is likely to be misused, meaning business to some lawyers and that would be defeating the very purpose of benevolent provision incorporated in the Code for providing a lawyer to defend an accused at the State expense. The discretion would therefore, vest in the Court in the matter of such appointment and not with the accused. The Court is required to take care of such an accused and to judge who could be the lawyer best suited to the situation. While vesting such discretion impliedly a duty is cast on the Court in providing such a counsel to defend an accused that the assistance so rendered does not turn out to be a bare formality of law and a mere show of defence. The object of the provision in Section 304 Cr.P.C. is the achievement of fair trial even to one who cannot engage a lawyer muchless of his own choice, so that there is no negation of the opportunity to defend, which may otherwise result in the failure of justice.
18. Their Lordships of Supreme Court, while considering the relevant provisions in the celebrated case of Hussainera Khatoon v. State of Bihar, AIR 1979 SC 1377 : (1979 Cri LJ 1052) observed that :
“We may point out that according to the law as laid down by us in our judgment dated 9th March, 1979, it is the conditional 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, to have free legal services provided to him by the State and the State is under a constitutional mandate to provide a lawyer to such accused person if the needs of justice so require.”
But the right of choice of a lawyer to an accused was not extended in that matter.
19. In the instant case, the learned trial Court found that as it had recently appointed Shri J. P. Shrivastava, the lawyer of the petitioner’s choice to defend the other accused in another matter, the appointment of the same lawyer again could not be repeated and as such, the Court had rightly proceeded in appointing another Counsel, Shri A. K. Jain to defend the accused petitioner.
20. As a sequel of the above discussion, I have found no infringement of the fundamental right under Article 22(1) and not of Section 303 Cr. P.C., the material irregularity or the illegality in the impugned order. It is neither a case of miscarriage of justice nor of failure of justice. The revision has, therefore, no substance and is dismissed.