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7. In Tyron Nazareth's case (supra), the Hon'ble Apex Court following the decision of Supreme Court in "Khatri-II v. State of Bihar" (1981) 1 SCC 627 and "Sukhdas v. Union Territory of Arunachal Pradesh" (1986) 2 SCC 401, held that convicted appellant was not assisted by any lawyer and perhaps, he was not aware of the fact that the minimum sentence provided under the statute was 10 years' imprisonment and a fine of Rs. One lac. Therefore, the Supreme Court, in the circumstances of the matter, had set aside the conviction and case was remanded for 'de novo' trial. It was further held that the appellant, if not represented by a lawyer, may make a request to the Court to provide him a lawyer under Sec.304 of Cr.P.C. or under any other Legal Aid Scheme and the Court may proceed with the trial afresh after recording a plea on the charges. The appeal was, therefore, allowed. The order of conviction and sentence recorded by the Special Court and confirmed by the High Court were set aside and a 'de novo' trial was ordered. The ratio propounded, in this case, is, squarely, attracted to the fact-situation of the appeal on hand. It appears that this decision was not brought to the notice of the Trial Court. It has, therefore, resulted into miscarriage of justice.

14. The combined and conjoint reading of the provisions of Art.22(1) of the Constitution, Sec.304 of Cr.P.C. and the provisions of Art.39A of the Constitution and the provisions of Legal Services Authorities Act, 1987, the right of accused to enjoy the services of an Advocate or a Counsel in a criminal case is unfettered and unqualified. It is not restricted to a particular kind or classes of offences. Most of the countries in the world have made it a constitutional right to have the assistance of a lawyer or a Counsel in criminal proceedings. Under the Sixth Amendment of United States' constitution, it is provided that any of criminal prosecutions, the accused shall enjoy the right of Counsel. In short, it can very well be said that no proposition is more, clearly, established than that the person cannot be condemned without being heard. The Supreme Court of the United States in the famous case of Gideon, held that :

19. Obviously, this right in section 304 does not include a right to be provided with a lawyer by the State. However, Sec.304 of Cr.P.C., provides that when in the trial and more so in trials before the Court of Session, the accused is not represented by a pleader or an Advocate and when it appears to the Court that the accused has not sufficient means to engage an Advocate, the Court shall assign a pleader or an Advocate for his defence at the expenses of the State. Under Sec.304(iii), the State Government, may, by notification, direct that the provisions of sub-section (i) will apply to any class of trials before other Courts in the State.

46. The object and design of the provisions of Sec.304 of Cr.P.C. is that legal-aid should be provided to a poor or an indigent unaided accused in a sessions trial case and it is a mandatory duty. Sec. 304(1) of the Criminal Procedure Code, in fact, gives effect to the recommendations of the Law Commission for making legal-aid available in all trials before the Court of Sessions. The accused was tried before the Court of Sessions and, the record does not show, clearly, that we can say that we are satisfied that he had replied to the question of the Trial Court on the point of legal-aid, understanding or exercising his faculty of mind or his intelligence, and, again, it is aptly manifested from the record and, also, admitted even, by the learned APP appearing before us, that there is nothing on record to suggest that the accused was given to understand by the Sessions Court that the offence with which he was charged, carries a minimum statutory sentence of 10 years and fine of Rs.1 lac. So, on both counts, factually and legally, the trial against the accused before the Sessions Court cannot be characterised as "reasonable, fair and just".