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31. We proceed on the assumption that whoever was the defence counsel, private or one provided through legal aid, either remained actually absent after 13.04.2011 when he had sought adjournment to cross-examine or virtually absent throughout the trial, even if he was physically present. Not much has to be reasoned by us to reach these conclusions as to the course of proceedings before the Trial Court speak for themselves.

32. It is by far now well settled for a legal proposition that it is duty of the Court to see and ensure that an accused put on a criminal trial is effectively represented by a defence counsel, and, in the event on account of indigence, poverty or illiteracy or any other disabling factor, he is not able to engage a counsel of his choice, it becomes the duty of the Court to provide him legal aid at State expense. What is meant by the duty of the State to ensure a fair defence to an accused is not the employment of a defence counsel for namesake. It has to be the provision of a counsel, who defends the accused diligently to the best of his abilities. While the quality of the defence or the caliber of the counsel would not militate against the guarantee to a fair trial sanctioned by Articles 21 & 22 of the Constitution, a threshold level of competence and due diligence in the discharge of his duties as a defence counsel would certainly be the constitutional guaranteed expectation. In the present case we find that the consistent abstinence from his duties and obligations by the learned counsel appearing for the defence are far for fulfillment of that constitution guarantee. The Court in that situation was under an obligation to take a proactive role limited to the facet of provision of opportunity of effective defence to the accused by atleast offering him alternate counsel at State expense, who would faithfully and diligently discharge his duties in defending the accused. This Court is of opinion that finding the accused going absolutely undefended against the prosecution witnesses on two successive occasions, the statutory obligation in Section 304(1) Cr.P.C. could not have been ignored by the Trial Judge by being content to record that the accused was represented by two counsel as he has said in his order dated 30.05.2012. The presence of counsel on record means effective, genuine and faithful presence and not a mere farcical, sham or a virtual presence that is illusory, if not fraudulent. In the present case it was in the consistent cognizance of the Trial Judge that the accused was going undefended and whoever was the defence counsel on record had forsaken their basic duties and not that they were just performing poorly. The counsel had absolutely refused to act leaving the accused undefended.

33. In that kind of a situation, we are of opinion that it was the duty of the Trial Judge to enquire of the accused if he had means to engage another counsel and if he did not have those means, to provide him legal assistance at State expense of a counsel, who would faithfully, diligently and to the best of his abilities discharge his duties in defence of the accused/ appellant at the trial. To our minds the words employed in Section 304(1) Cr.P.C. "............... the accused is not represented by a pleader, ............... do not and cannot mean a kind of paper and sham representation as distinguished from a substantial, bona fide and diligent representation. Not ensuring the reasonable and diligent representation by counsel or pleader to the accused would not relieve the State of its obligation under Section 304(1) Cr.P.C. and could not pass the test of fairness which every action of the State must withstand in keeping with the obligation under Articles 14 and 21 of the Constitution.

(Emphasis by us)

24. In the present case, not only was the accused denied the assistance of a counsel during the trial but such designation of counsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. The court ought to have seen to it that in the proceedings before the court, the accused was dealt with justly and fairly by keeping in view the cardinal principles that the accused of a crime is entitled to a counsel which may be necessary for his defence, as well as to facts as to law. The same yardstick may not be applicable in respect of economic offences or where offences are not punishable with substantive sentence of imprisonment but punishable with fine only. The fact that the right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our judicial proceedings, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of a counsel was a denial of due process of law. It is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 CrPC.

50. The appellant, ex facie, was deserted by his counsel on record and it is in the considered opinion of this Court a folly on the part of Trial Judge not to have extended the facility of a counsel to effectively defend him at State expense, if he so desired. A perusal of orders recorded by the learned Trial Judge on 24.05.2012 and 30.05.2012 shows that no such offer was made to the appellant to defend him at State expense. The learned Trial Judge was aware that the accused had such a right in case of his counsel deserting him. He knew the consequences of the prosecution witnesses going unchallenged, and, that too in an offence involving a capital charge, that would either result in a sentence of death or imprisonment. However, instead of informing the accused that he was entitled to be defended at the expense of the State exchequer, the learned Trial Judge appears to have gone by the letter of Section 304(1) Cr.P.C., which says that the facility to be defended at State expense in a court of sessions is for the accused, who is not represented by pleader. Since the accused in this was, on record, represented by pleader/ counsel, who had appeared on 13.04.2011, but thereafter deserted the appellant altogether when the entire trial went through, proved a sham by refusing to cross-examine any of the witnesses certainly attracted the provisions of Section 304(1) Cr.P.C. The Trial Judge under such a situation was duty bound to inform the appellant that he could be provided a counsel to defend him at State expense, if he did not have means to engage another counsel of his choice.