Section 304 CrPC: Free Legal Aid to Accused at State Expense

Section 304 of the Code of Criminal Procedure, 1973 required State-funded legal representation for an accused person without sufficient means in a Sessions trial. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 341 BNSS, which expressly covers trials and appeals before a Court.

Current law: The BNSS came into force on 1 July 2024. Section 341 is the corresponding provision for new proceedings, subject to applicable transitional and savings provisions. Section 304 CrPC remains relevant to older proceedings governed by the former Code.

Section 304 CrPC: Original statutory provision

304. Legal aid to accused at State expense in certain cases

(1) 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 not sufficient means to engage 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 for:

(a) the mode of selecting pleaders for defence under sub-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 sub-section (1).

(3) The State Government may, by notification, direct that, as 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.

Section 341 BNSS: Present legal position

Section 341(1) BNSS requires the Court to assign an advocate at State expense where an accused in a trial or appeal before a Court is unrepresented and appears unable to afford an advocate. Unlike the express wording of the former Section 304(1), it is not limited to a trial before the Court of Session.

Section 341(2) empowers the High Court, with prior State Government approval, to frame rules on the selection of defence advocates, facilities available to them and fees payable by the Government. Section 341(3) retains the State Government's power to extend the specified arrangements to classes of trials by notification; its wording should be read alongside the broader protection in sub-section (1).

Meaning and scope of free legal aid

Legal aid at State expense means representation by an advocate whose fees are borne by public funds rather than by an accused who cannot afford legal counsel. The Court must consider whether the accused is unrepresented and lacks sufficient means; the statutory duty under Section 341(1) is mandatory when those conditions are satisfied.

The right to legal assistance also draws support from Article 21 of the Constitution, which protects fair procedure, Article 22(1), concerning consultation and defence by a legal practitioner of choice, and Article 39A, directing equal justice and free legal aid. The Legal Services Authorities Act, 1987 provides an additional institutional framework for eligible persons seeking legal services.

How an accused can seek legal aid

Inform the trial or appellate Court that no advocate is representing the accused and that private representation is unaffordable.
Request assignment of an advocate under Section 341 BNSS, or Section 304 CrPC where the former Code continues to apply.
Approach the District Legal Services Authority (DLSA), State Legal Services Authority (SLSA) or relevant legal aid office for assistance.
Provide available information about financial circumstances and the pending case; the Court or legal services institution may seek supporting details.

Important change from Section 304 CrPC

Under the former Section 304(1), the express duty concerned an unrepresented, indigent accused in a Sessions trial. Section 341(1) BNSS refers instead to a trial or appeal before a Court. This expanded wording is significant for access to publicly funded defence at the appellate stage as well as during trial.

Frequently asked questions

Is free legal aid available in a criminal appeal?

Yes. Section 341(1) BNSS expressly includes an appeal before a Court when the accused is unrepresented and lacks sufficient means to engage an advocate.

Does the accused have to pay the appointed advocate?

Under the statutory arrangement, defence counsel is assigned at the expense of the State. Applicable legal services rules govern administration and payment.

Is Section 304 CrPC still applicable?

The CrPC was replaced by the BNSS from 1 July 2024, but transitional and savings provisions may preserve the former Code for certain pending proceedings. The applicable procedural law should be checked for the particular case.

Official legal resources

This article provides general legal information. State rules, procedural savings and case-specific court directions may affect the applicable procedure.