DINESH DAS Vs. STATE

JUDGEMENT

(1.) This is an appeal against the conviction of the appellant by the learned Sessions Judge of Howrah under Sections 328/379 Penal Code and sentence of rigorous imprisonment for four years and one year respectively imposed upon such conviction.

(2.) The principal contention raised on behalf of the appellant related to a question of procedure followed by the learned Judge. It appears that the accused was not represented at the time of trial by any lawyer end the learned Judge has recorded that at one stage he had engaged a senior lawyer for procuring his release on bail alter commitment but he did not pray for any legal aid for his defence. The learned Judge has further observed that the accused did not appear to be indigent, no legal aid was given to him under Sec. 304 Crimial P.C. It is here that the learned advocate for the appellant has joined issue and has argued that even though no prayer was made before the learned Judge for any legal aid, still it was incumbent upon the Judge himself to enquire from the accused whether he wanted to be defended at the cost of the State in accordance with the provision of Sec. 304 Crimial P.C. The rest of the contention is that since this was not done the entire trill was vitiated as the accused was denied the constitutional guarantee envisaged in Art. 21 of the Constitution.

(3.) Now in order to extend legal aid to an accused at State expense under Sec. 304 Crimial P.C. two conditions have to be fulfilled : he first is that the accused is not represented by a pleader and the other is that it appears to the court that the accused has not sufficient means to engage a pleader. It is no doubt true that this section does not provide that defence at State cost shall not be given except on a prayer made by an accused but in order attract this section it is absolutely essential that it must appear to the con that the accused has not sufficient means to engage a pleader. In the instance case the learned Judge has not only recorded that the accused did not appear to be indigent but he has further noted that at one stage he had engaged senior lawyer to get him released on bail after commitment. We have also examined the record for ourselves and it seems that the accused had not only engaged a lawyer after commitment but even before commitment he had engaged more than one lawyer on his behalf. In such circumstances the finding of the learned Judge that it appeared to him that the accused was not an indigent person cannot be successfully assailed. Once this position is accepted there cannot be any question of engaging a lawyer fort at State cost because it is only when an accused is unable to afford representation by a lawyer on account of poverty that such indulgence cat given.