SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd. Page 32 Monday, October 24, 2022 Printed For: Navami Krishnamurthy, Jindal Global University SCC Online Web Edition: http://www.scconline.com © 2022 EBC Publishing Pvt.Ltd., Lucknow. ----------------------------------------------------------------------------------------------------------------------------------------------------------- it becomes the duty of the court to provide him appropriate and meaningful legal aid at the 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 and 22 resply 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. 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. 121. Article 39A of the Constitution speaks about free legal aid which reads thus: “39A. Equal justice and free legal aid.— The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.” 122. Section 304 of the CrPC refers to legal aid to the accused at State expenses in certain cases which reads thus: “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 rule providing for— (a) the mode of selecting pleaders for defence under subsection (1); (b) the facilities to be allowed to such pleaders by the Courts; (c) the fee payable to such pleaders by the Government, and generally, for carrying out the purposes of subsection (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 the Courts of Session.” 123. Under Section 9 of the Legal Services Authorities Act, 1987, the District Legal Services Authorities are constituted for every District in the State to exercise powers and perform functions conferred on, or assigned to, the District Authority under the said Act. 124. This Court in para 13 of the judgment reported in Kishore Chand v. State of Himachal Pradesh, (1991) 1 SCC 286, held thus: “13. Though Article 39-A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practising in the court concerned, volunteer to defend such indigent accused as a part of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency.” 125. This Court, in the case of Zahira Habibullah Sheikh (5) v. State of Gujarat, reported in (2006) 3 SCC 374, has observed in paragraphs 30, 35, 38 and 39 as under: