Section 304 of the Code of Criminal Procedure provides that where, in a trial before the Sessions Court, the accused is not represented by a Pleader, and it appears to the Court that the accused does not have sufficient means to engage a Pleader, the Court must assign a Pleader for his defence at the expense of the State.
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With the previous approval of the State Government, the High Court may make rules providing for—
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(a) The mode of selecting Pleaders for defence, as above;
(b) The facilities to be allowed to such Pleaders by the Courts; and
(c) The fees payable to such Pleaders by the Government, and generally, for carrying out the above purpose.
The above provision can also be extended to other Courts if the state government issues a notification to that effect.
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As observed by justice .Krishna Iyer (in R.M. Wasawa, A.I.R. 1974 S.C. 1143),—
“Indigence should never be a ground for denying fair trial of equal justice… Particular attention should be paid to appoint competent advocates, equal to handling complex cases, not patronising gestures to raw entrants at the Bar. Sufficient time and complete papers should also be made available, so that the Advocate chosen may serve the cause of justice.”
The Supreme Court has observed that the obligation under S. 304 of the Code, to provide legal aid to the indigent accused does not arise only when the trial commences, but from the time the accused is produced before the nearest Magistrate, as required by law. (Khatri v. State of Bihar, 1981 Cr. L.J. 470)
The Supreme Court has also held that if an accused is convicted after a trial in which he was not given legal aid, the conviction could be set aside as being violative of Art. 21 of the Constitution. (Sukh Das v. Union Territory of Arunachal Pradesh, AIR 1986 S.C. 911)
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It has also been held that when an accused person wishes to enforce this remedy, the proper course would be an application under S. 304 of the Cr. P.C., and not a writ of mandamus under the Constitution. (Ranjan Dwivedi v. Union of India, A.I.R. 1983 S.C. 624)