Code: Section 340 BNSS
340. Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Sanhita, has the right to be defended by an advocate of his choice.
Purpose and Importance of Section 340 BNSS
Section 340 BNSS ensures the fundamental right of an accused person to be represented by a lawyer of their own choice in any criminal proceedings. This aligns with Article 22(1) of the Indian Constitution, which grants every person the right to consult and be defended by a legal practitioner of their choice.
Why is this Section Important?
✔ Ensures a fair trial and prevents miscarriage of justice.
✔ Upholds the principle of natural justice—no one should be left undefended.
✔ Gives the accused the freedom to choose a lawyer who best represents their interests.
✔ Strengthens trust in the judicial system by ensuring equal legal protection.
Key Provisions and Legal Interpretations
1. Right to Choose a Lawyer
- The accused cannot be denied the right to select their own advocate.
- Even if legal aid is provided (under Section 341 BNSS), the accused can still opt for a private lawyer.
2. Applicability to All Criminal Cases
- This section applies to all criminal trials, including:
- Sessions Court cases (serious offences like murder, rape, etc.).
- Magistrate Court trials (less serious offences).
- Bail hearings, appeals, and revisions.
3. Protection Against Forced Representation
- No court can force an accused person to accept a particular lawyer.
- If an accused is unable to hire a lawyer, free legal aid is available under Section 341 BNSS.
Illustrations & Case Examples
Example 1: Right to Private Legal Representation
- Ramesh is charged with theft and appears before a Magistrate Court.
- He chooses to hire a private advocate for his defence.
- The court must allow his choice, ensuring his right under Section 340 BNSS.
Example 2: Denial of Legal Representation Violates Rights
- Shalini is accused of fraud and requests an advocate of her choice.
- The court refuses and assigns a lawyer without her consent.
- This is a violation of Section 340 BNSS and Article 22(1), making the trial unfair.
Example 3: Legal Aid vs. Private Lawyer
- Akash, accused of cybercrime, cannot afford a lawyer.
- The court provides a legal aid lawyer (under Section 341 BNSS).
- Later, Akash arranges funds and hires a private lawyer.
- The court must allow the private lawyer to take over.
Common Questions on Section 340 BNSS
1. Can an accused be denied legal representation?
❌ No. Every accused person has the absolute right to a lawyer of their choice.
2. What if the accused cannot afford a lawyer?
✔ They can request free legal aid under Section 341 BNSS.
3. Can the police question an accused without a lawyer?
✔ Yes, but the accused has the right to request legal representation before answering any questions.
4. Can a trial proceed without a defence lawyer?
✔ Only if the accused voluntarily waives their right to legal representation. Otherwise, it is a violation of fair trial principles.
5. Can the court force a particular lawyer on the accused?
❌ No. The accused has full freedom to choose their own lawyer.
Conclusion
Section 340 BNSS safeguards the right to legal representation, ensuring that every accused person can defend themselves with a lawyer of their choice. This provision is crucial in upholding justice, fairness, and the rule of law.
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