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Heard. Mr. K.Chandru, learned senior counsel appearing for the petitioner and Mr.K.Doraiswmy, learned Public Prosecutor for the respondents.

2. The petitioner was arrested on 20.8.2003 in Chennai in connection with the case in Cr.No.145/2003 for the alleged offences under Passport Act. Final report was filed after investigation and was taken on file in C.C. No.736/2004 for the alleged offences under Section 12(1)(b) and (d)(e) and 12(1A)(a) of Indian Passport Act. As the petitioner is a Nepali citizen and he does not have sufficient means to engage a lawyer of his choice, he made a request to the learned Magistrate to provide a lawyer of his choice at the cost of the State. For the said purpose, he filed a petition under Section 304 of the Code of Criminal Procedure. The said Section contemplates that in a trial before the Court of Session, in the event of 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 Court shall assign a pleader for his defence at the expenses of the State. In this context, the petitioner has also quoted the name of an advocate Mr.C. Vijayakumar, having his office at l134, Thambu Chetty Street, Chennai-1 to defend him in the trial. The learned Magistrate, however, refused to accept his request on the ground that the name of the said advocate is not included in the panel of advocates of that court. Hence, the present Writ Petition is filed to issue a Writ of Mandamus to direct respondents 2 and 3 to nominate the said advocate to defend the petitioner in the said case, pending before the 3rd respondent and to direct the 3rd respondent to conduct the chief examination afresh.

4. Mr.K. Doraisamy, learned Public Prosecutor appearing for the respondents, on the other hand, would submit that in exercise of power under section 304 of the Code of Criminal Procedure, the State has identified names of Advocates and included them in the panel for each Court. The petitioner has requested an advocate, by name, Mr.C. Vijayakumar, to defend his case, though his name has not been included in the Court before which the petitioner is tried. Hence, the learned Public Prosecutor submitted that the petitioner cannot seek assistance of a lawyer in the event that the lawyers name does not find a place in the panel for the Court in question.

11. Infact, the Apex Court has also held in the above judgment that the Magistrate or the Sessions Judge before whom the accused appears, is under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. As the directive principles of the State policy enshrined under Article 39(A) cannot be enforced by a writ of mandamus, the accused must apply to the Court before whom he is tried under Section 304 of Code of Criminal Procedure for assignment of a pleader for his defence at the expense of the State The said Section c ontemplates that where in a trial before the Court of Session, 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 Court shall assign a pleader for his defence at the expense of the State. Of course, Section 30 4 relates to trial before the Court of Session and it does not relate to the trial in other Courts, particularly a Magistrate Court as in the case on hand, but it cannot be said that when the right of an accused person is guaranteed to engage a lawyer of his choice for his defence, of course, on an application by him, by virtue of the obligation of the state enshrined under Article 39(A), the State is obligated to provide legal assistance even in case of a trial before Magistrate or other Courts where an accused after trial may be convicted and sentenced to undergo imprisonment or to pay fine. Considering the right enshrined under Article 22(1) coupled with the directive principles of the State Policy enshrined under Article 39(A) of the constitution, the right of accused to engage a lawyer of his choice at the expenses of the State before the Magistrate Court could be traced under Section 303 of Code of Criminal Procedure. The said Section contemplates that any person accused of an offence before a criminal Court, or against whom proceedings are instituted under the Code, may of right be defended by a pleader of his choice.

13. The petitioner who is facing trial before the learned Magistrate, though has filed a petition under Section 304 of Code of Criminal Procedure, would be entitled to engage a lawyer of his choice to defend his case,as such application could be considered an application filed under Section 303 of Code of Criminal Procedure and the petitioner must be permitted to engage a lawyer of his choice viz., Mr.C. Vijayakumar to defend his case. It must also be noted that the said Advocate viz., Mr.C.Vijayakumar, is also one of the Advocates who is empanelled by the State for providing legal assistance.