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8. A careful reading of the provisions of Section 304 of the Code of Criminal Procedure shows that each sub-section operates distinctly and it is not as if one sub-section would depend upon the compliance of the other. A careful reading of sub-section (1) of Section 304 shows that it is the duty of the Court of Session to assign a pleader for the defence of the accused at the expense of the State when the accused is not represented by a pleader, and where it appears to the Court that the accused has no sufficient means to engage a pleader. The power of the Court of Session to assign a pleader may be at the instance of the accused himself by filing an application or by the exercise of power suo motu even in case where there is no application for such request, as the Court is concerned with the question as to whether the accused was represented by a pleader or not and such accused did or did not have sufficient means to engage a pleader.

10. Keeping the above in mind, the claim in the writ petitions and in the criminal appeal should be considered. Both the writ petitioners have not approached the Court of Session by filing any application invoking sub-section (1) of Section 304 of the Code of Criminal Procedure. It is argued by the learned Additional Public Prosecutor that in view of sub-section (1) of Section 304, an application for assignment of a pleader should be filed only by the accused concerned and in both the writ petitions none of the accused have approached the Court of Session seeking for assignment of pleaders. On the other hand, the two advocates, namely, the petitioners in both the writ petitions, have directly approached this Court for fixation of fee by the State on the ground that they have defended some of the accused. Hence the writ petitions are not maintainable. Mr.R.Thirugnanam, learned Special Govt. Pleader has also argued extensively on the same line by referring to the counter affidavit.

11. We are not inclined to accept the said submission. In matters like this, the Court cannot adopt a narrow approach as to the entitlement of the pleader for reasonable fees for defending the accused, who was not represented by any pleader and who did not have sufficient means to engage a pleader. Sub-section (1) of Section 304 should be read along with the provisions of Section 303, which contemplates a right on the accused to have a pleader of his choice. Of course, when the accused chooses a pleader to defend his case, the remuneration should be borne by the State in the event the accused is able to satisfy the Court that he did not have sufficient means to pay the pleader. This right of an accused stem from the right to fair trial which includes the right to defend effectively through a pleader who is competent in the subject. Such right could be traced to Article 21 as well to Article 39A of the Constitution of India. Therefore, the prime consideration and the decisive factor would be the right of the accused for a just and fair trial and to defend the case effectively and in that context, the payment of remuneration to the pleaders shall incidentally assume importance. It is true that except the appellants in the criminal appeal, the other accused have not approached the Court of Session for payment of remuneration to the pleaders they had engaged in terms of sub-section (1) of Section 304 of the Code of Criminal Procedure nor invoking the inherent power of this Court under Article 226/227 of the Constitution of India. As we have held that the prime consideration would be the right of the accused, the relief of payment of remuneration on the basis that the pleaders have defended the accused cannot be rejected on technical grounds and in the peculiar facts and circumstances of the case, namely, that when the trial itself had already been completed and the pleaders have already defended the accused by effectively cross examining the accused, it would not be proper for this Court to reject the claim on the ground that the accused had not approached the Court of Session under sub-section (1) of Section 304 of the Code of Criminal Procedure for appointment of pleaders and for payment of remuneration.

15. In Criminal Appeal No.346 of 2007, the appellants, 27 in number, have approached the Special Court under Section 304 of the Code of Criminal Procedure in Crl.M.P.No.102 of 2007 for appointment of pleaders through legal aid to defend them in their case and the said petition was dismissed by order dated 24.3.2007. As we have found that irrespective of whether an application is filed or not, in the event the Court is satisfied that the accused is entitled to defend the case through the pleader of his choice and at the expense of the State in the event he is able to satisfy the Court that in the circumstances of the case a pleader of special expertise is required and he has no means to pay him, the Court in exercise of suo motu power under Section 304 could appoint such pleader by fixing the fee at the cost of the State. In the event the Court had not done so, this Court would certainly be competent, both to make such appointment and to direct the payment of fee from the State fund. Hence for the above reasons, both the writ petitions and the criminal appeal should succeed.