LexRANJAN DWIVEDI versus UNION OF INDIA
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D E F H RANJAN DWIVEDi v. UNION OF INDIA April 26, 1983 [R. S. PATHAK AND A. P. SEN, JJ.) Criminal Proceedings-Art. 22(1) and Art. 39·A of Constitution of India- Accused facing Criminal trial not entitled to engage counsel of his choice at State expense-c-l;lis remedy _ii to make application for free legal aid under s. 304(1), Cr. P. C., 1973. "' . The petitioner, an Advocate facing trial under s. 302 read with s. 12-0~B, J .P.C. submitted that the prosecution case against him was being conducted by a galaxy of lawyers specially engaged by the State on large sums of fee but he did not have the means to engage a competent lawyer for his defence; that no lawyer of sufficient standing would find it possible to appear as amicus curiae on a fee of Rs. 24 per day fixed by the Delhi High Court; that while Art. 22(1) of the Constitution comprehends the right of an accused to be supplied with a lawyer by the State, under Art. 39·A, as a matter of processual fairplay, it is incumbent on the State to provide him with a counsel• on a basis of equal opportunity; and therefore, the respondent should be directed to give financial assistance to him to engage a counsel of his choice. Counsel for respondent contended that the petition under Art. 32 was not maintainable and that the remedy of the- petitioner was to make an applica· tion under sub-s. (!)of s. 304, Cr. P.C., 1973 before the Court of Sessions. During the·pendency of the petition the Court passed interim orders asking t_he petitioner to inform the Court of Sessions the name of the counsel who would be appearing' for hin1 and directing the State to make necessary arrangements for payment of the amoriilt required to be expen~ed on his fees. Dismissing the petition, HELD (a) The petitioner is not entitled to the grant of writ of Manda• mus for the enforcement of the Directive Principle enshrined in Art. 39-A by ordaining the respondent to give financiiil assistance to him to engage a counsel of his choice on a scale equivalent to, or comm~nsurate with, the fees that are· being paid to the counsel appearing for the State. As i! clear from the tenns of Art. 39-A, the social objective of equal justice and free legal aid has to be. implemented by suitable legislation or by formulating schemes for· free legal aid. [986 C-EJ (b) The traditional view expressed by this Court on the interpr.etatlort of Art. 22(1) that "the right to be defended by a legal Practitioner of his y '\...- - . y . _j - RANJAN DWIVEDI v. uNION choice" could only mean a right ·or the· ac.cused 10 have the opportunity to engage a laywer and does n~guarantee an absolute right to be supplied with I;\- laywer by the State, has now undergone a change .with the intI:oductjon of Art. 39-A in the Constitution, the_enactment of sub-s. (I) of s. 304, Cr. P. C., 1973 and the later pronouncement of this Court. ·Read with Art.-21; the·· Directive Principle in Art. 39-A has been taken cognizance of by the Court to .Jead to certaJn guidelines in the administration of justice. One of these is that wh~n the accused is unable to engage a _counsel -owing to poverty or- simil_~_r circumstances, the trial would be vitiited- unless t~e State offers ftee legal aid for his defence to engage a lawyer, whose engagement the accused does ilot object. [986 F-H, 987 A-q Janardan Reddy & Ors. v. The State of Hyderabad & Ots. (1951) S.C.R. 344; Powell v. Alabama, 77 L. Ed. 158; Maneka Gandhi v. Union of India, (1978) 2 S.C.R. 621; E. P. Royapa v. State of Tamil Nadu, (1974) 2 S.C.R. 348; R. D. Sltetty v. The International Airport Authority of India & Ors., (1979) 3 S.C.R. 1014; Keshavanand Bharti v. Unibn of India, (1973) 4 S.C.C. 225; M. H. Hoskot -v. The State of Maharashtra, (1979) I S.C.R. 192; State of Haryana v. Darshana _ Devi & Ors., (1979) 3 S.C.R. 184; Hussainara Kjratoon & Ors. v. Home Secretary, ·State of Bihar, Patna, (1979) 3 S.C.R. 532; Betts v. Brady, 86 L.Ed. 1595 and .Gideon v. Wainright, 9th L.Ed. 20 799 referred to. In the instant case the remedy of the petitioner is to make an application ·before the Additional Sessions Judge for- 'grant of free legal aid a:nd if the "latter is satisfied that the requirements of sub-s. (1) of s. 304 Cr. P.C., -1973 _are fulfilled, he. may make necessary directions in that behalf. The Additional Sessions Judge shall fix the an1ount of fee payable to Counsel _appearing fOr - the petitioner -having regard to the interim
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