Report No. 41
24.31. Revised section 339 recommended.-
The revised section 339, after including the provisions of section 339A, may be as follows:
"339. Trial of persons not complying with condition of pardon.- (i) Where in regard to a person who has accepted a tender of pardon made under section 337 or section 338, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered and any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence:
Provided that such person shall not be tried jointly with any of the other accused:
Provided further that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing contained in section 195 or in section 476 shall apply to that offence.
(2) Any statements made by such person after accepting the tender of pardon and recorded by a Magistrate under section 164 or by a Court under su.-section (3) of section 337 may be given in evidence against him at such trial.
(3) At such trial the accused shall be entitled to plead that he has complied with the condition upon which such tender was made in which case it shall be for the prosecution to prove that the condition has not been complied with.
(4) At such trial, the court shal.-
(a) if it is a Court of Session, before the charge is read out and explained to the accused, and
(b) if it is the Court of a Magistrate before the evidence of the witnesses for the prosecution is taken, ask the accused whether he pleads that he has complied with the condition on which the tender of pardon was made.
(5) If the accused does so plead, the Court shall record the plea and proceed with the trial. It shall, before passing judgment in the case, find whether or not the accused has complied with the condition of the pardon, and, if it finds that he has so complied, it shall, notwithstanding anything contained in this Code, pass judgment of acquittal."
24.32. Section 340.-
Section 340 consists of two su.-sections which have no connection with each other. Su.-section (1) deals with the right of any person accused of an offence or against whom proceedings are instituted under the Code to be defended by a pleader. Su.-section (2) deals with the right of persons against whom certain proceedings are instituted to offer themselves as witnesses, which is an entirely different matter. This should be dealt with in a separate section, a convenient place for which would be after section 342A.
24.33. Su.-section (2.-amended and amplified.-
Su.-section (2) mentions proceedings under section 107 but leaves out proceedings under sections 108, 109 and 110 which are in the same category. We are of the view that persons against whom such proceedings are instituted should also have a right to offer themselves as witnesses. In their case, however, it should be provided that their failure to give evidence should not be made the subject of any comment or give rise to any adverse presumption: vide clause (b) of the proviso to section 342A.
We recommend that su.-section (2) of section 340 be omitted, and a new section 342B added after 342A reading as follows.-
"342B. Any person against whom proceedings are instituted in any Criminal Court under Chapter VIII, Chapter X, Chapter XI, Chapter XII or Chapter XXXVI, or under section 552, may offer himself as a witness in such proceedings:
Provided that in proceedings under section 108, section 109 or section 110, the failure of such person to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against him or any other person proceeded against together with him at the same inquiry."
24.34. Legal aid to accused at expense of the State in certain case.-present position.-
Though section 340 provides that the accused may be represented by a pleader, it does not give him any right to legal aid at the expense of the State. Assistance of counsel at the expense of the State is at present provided for by rules or administrative orders which vary from State to State. Almost all States provide for such assistance in capital cases. In Maharashtra and Gujarat it is provided in all Sessions trials; and in Kerala it is provided also for all trials before District Magistrates.
24.35. Recognised as a "human right" by International Covenant.-
It can hardly be disputed that, in a trial for a serious offence, the assistance of counsel on both sides is essential for a just decision of the case. Development in the field of human rights has been towards the recognition of the right of the accused person to assigned counsel. The recently adopted International Covenant on Civil and Political Rights1 provides in Article 14(3) that "in the determination of any criminal charge against him, every one shall be entitled to the following minimum guarantees in full equality.-
"(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;"
The European Covenant on Human Rights, which has been in effective operation for some years, contains a similar provision.
1. Adopted by the General Assembly of the United Nations in January, 1968.
24.36. Gideon's Trumpet case.-
In a celebrated case,1 the Supreme Court of the U.S.A., after a review of previous decisions, held that the right of an accused in a criminal case to have the assistance of counsel for his defence2 includes the right to have a counsel provided at the expense of the State if the accused is too poor to engage one at his expense. The reasons for this decision have been given by Black J. as follows.-
"Not only these precedents but also reason and reflection require us to recognise that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both State and Federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defences.
That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our State and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him."
1. Gideon v. Wainwright, (1963) 372 US 335.
2. U.S. Constitution Sixth Amendment.
24.37. Recommendation in 14th Report.-
In India, the importance of this right, i.e., a right to assignment of counsel at Government expense was emphasised in the Law Commission's Report on the Reform of Judicial Administration,1 where a brief review of the schemes in force in some of the States was made, and it was pointed out that certain measures of legal aid were capable of being implemented forthwith, without setting up elaborate legal aid organisations, by amending the law or the rules of the high Courts.
As regards criminal cases, three recommendations were made in that Report.2 First, representation by a lawyer should be made available at Government expense to accused persons without means in all cases tried by a Court of Session. Secondly, representation by a lawyer should be made available at Government expense to applicants without means in proceedings under section 488 of the Code. Thirdly, representation by a lawyer should be made available at Government expense to an accused person without means at the time of the final hearing of a jail appeal which has been admitted.
1. Law,Commission, 14th Report, Vol. 1, Chapter 27.
2. 14th Report, Vol. 1.
24.38. Our recommendation.-
The matter has been engaging the attention of the Government of India for a long time, and the need for action in the matter has been impressed upon State Governments. But, apparently, financial considerations have come in the way of setting up legal aid organisations or putting into effect comprehensive schemes. It is not necessary for our purpose to go into the details of the various possible schemes. But we strongly recommend that the right of the accused to representation at Government expense should be placed on a statutory footing in relation to trials for serious offences, and as a first step in this direction, we propose that such a right should be available in all trials before the Court of Session. The Code should also contain a provision enabling the State Government to extend this right by a notification to any class of trials before other courts in the State.
24.39. New section 340A proposed.-
The new section may be as follows.-
"340A. (1) Where, i.-a trial before the Court of Session, the accused is not represented by 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 fo.-
(a) the mode of selecting pleaders for defence under su.-section (1),
(b) the facilities to be allowed to such pleaders by the Courts,
(c) the fees payable to such pleaders by the Government, and, generally, for carrying out the purposes of su.-section (1).
(3) The State Government may by notification in the Gazette direct that, 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 Courts of Session."
24.40. Section 34.-Introductory.-
Section 342 is one of the most important sections in the Code. It requires that the Court must, at the close of the prosecution evidence, examine the accused "for the purpose of enabling him to explain any circumstance appearing in the evidence against him." The section, for a moment, brushes aside all counsel, all prosecutors, all witnesses, and all third persons. It seeks to establish a direct dialogue between the Court and the accused for the purpose of enabling the accused to give his explanation.
For a while the section was misunderstood and regarded as authorising an inquisitorial interrogation of the accused, which is not its object at all. The key to the section is contained in the first sixteen words of the section. Giving an opportunity to the accused to explain the circumstances appearing in the evidence is the only object of the examination. He may, if he chooses, keep his mouth shut or he may give a full explanation, or, if he is so advised, he may explain only a part of the case against him.