Section 340 – Right of Person Against Whom Proceedings Are Instituted to Be Defended

Introduction

Section 340 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the right of a person against whom criminal proceedings are instituted to be defended by an advocate of their choice.

The provision recognises the accused person’s right to legal representation during criminal proceedings. It also provides that, in certain circumstances, the Court may allow a person other than the accused to conduct the defence.

The provision substantially corresponds to Section 303 of the Code of Criminal Procedure, 1973.

Meaning of Section 340

Section 340 establishes the right of a person accused of an offence, or against whom proceedings have been instituted under the BNSS, to be defended by an advocate of their choice.

The right is an important procedural safeguard because a criminal proceeding may have serious consequences for the liberty, reputation and legal rights of the person concerned.

Statutory Basis

Section 340 provides:

Right of person against whom proceedings are instituted to be defended

Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Sanhita, may of right be defended by an advocate of his choice.

The provision therefore recognises legal representation as a statutory right in criminal proceedings.

Essential Elements

1. Proceedings Must Be Before a Criminal Court

The provision applies where a person is:

• accused of an offence before a Criminal Court; or
• subject to proceedings instituted under the BNSS.

2. Right to Be Defended

The person has a right to be defended in the proceedings.

This is not merely a discretionary permission granted by the Court. The language of Section 340 expressly recognises the right of the person concerned.

3. Advocate of the Person’s Choice

The person may be defended by an advocate of their choice.

The provision therefore gives the accused or person against whom proceedings are instituted an important degree of autonomy in selecting legal representation.

Scope of the Right

The wording of Section 340 is wider than merely referring to a person formally convicted or charged after framing of charge.

It covers:

• a person accused of an offence before a Criminal Court; and
• a person against whom proceedings are instituted under the BNSS.

The right operates throughout the relevant criminal proceedings, subject to the procedural framework governing the particular proceeding.

Constitutional Connection

Section 340 is closely connected with the constitutional guarantee of a fair procedure under Article 21 of the Constitution of India.

It also has a relationship with Article 22(1), which provides that a person who is arrested shall not be denied the right to consult, and to be defended by, a legal practitioner of their choice.

The statutory right under Section 340 therefore operates alongside the constitutional protection relating to legal representation.

Right of Choice of Advocate

A significant feature of Section 340 is that the person may choose the advocate who will defend them.

The right to legal representation is therefore not merely a right to have some lawyer present. The statutory language specifically recognises defence by an advocate of the person’s choice.

However, the exercise of this right remains subject to the professional and procedural rules applicable to advocates and criminal proceedings.

Right to Legal Aid

Section 340 should also be understood along with the constitutional principle of free legal aid.

Where an accused person is unable to engage an advocate because of financial inability or other circumstances, the State has an obligation, in appropriate cases, to provide legal assistance in accordance with the constitutional guarantee of fair procedure and the applicable legal-aid framework.

The right to an advocate of one’s choice under Section 340 and the right to legal aid are related but distinct concepts.

Important Distinction

Right to Defence and Right to Legal Aid

The right under Section 340 allows a person to be defended by an advocate of their choice.

Legal aid, on the other hand, concerns the provision of legal assistance to a person who cannot effectively secure representation on their own.

Therefore, the two concepts should not be treated as identical.

Accused and Advocate

The right belongs to the person against whom the proceedings are instituted. The advocate represents and defends that person in accordance with law and professional duties.

The advocate does not become personally responsible for the criminal liability alleged against the accused merely because the advocate conducts the defence.

Object and Purpose

The main purposes of Section 340 are:

• to protect the right to legal representation;
• to ensure a fair opportunity to defend against criminal allegations;
• to enable the accused to obtain professional legal assistance;
• to protect the procedural rights of persons facing criminal proceedings; and
• to reinforce the fairness of criminal trials.

Relationship with Other Provisions

Section 340 should be read along with provisions dealing with legal aid, legal representation and the conduct of criminal proceedings.

It is particularly relevant in conjunction with the constitutional protections under Articles 21 and 22 and the statutory framework concerning legal services.

BNSS and CrPC

Section 340 BNSS substantially corresponds to Section 303 of the Code of Criminal Procedure, 1973.

The basic statutory right has been retained under BNSS. A person accused of an offence before a Criminal Court, or against whom proceedings are instituted under the BNSS, may be defended by an advocate of their choice.

Relationship with BNS and BSA

Section 340 is a procedural safeguard under the BNSS.

The Bharatiya Nyaya Sanhita, 2023 (BNS) determines the substantive criminal offences and punishments, while the Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the law of evidence.

Section 340 concerns the person’s right to legal representation during proceedings governed by criminal procedure.

Example

Suppose A is accused of committing an offence and criminal proceedings are instituted against A before a Criminal Court.

Under Section 340, A has the right to defend himself through an advocate of his choice. The Court cannot treat legal representation as merely a matter of discretion where the statutory conditions of the provision are satisfied.

If A cannot afford legal representation, the separate constitutional and statutory framework concerning legal aid may become relevant.

Topic at a Glance

• Section: 340, BNSS, 2023
• Subject: Right to be defended
• Beneficiary: Person accused of an offence or against whom proceedings are instituted under BNSS
• Right: Defence by an advocate of choice
• Nature: Statutory procedural right
• Constitutional connection: Articles 21 and 22(1)
• Related principle: Fair trial and access to legal representation
• Corresponding CrPC provision: Section 303, CrPC

Quick Revision

• Section 340 BNSS recognises the right to legal defence.
• A person accused of an offence before a Criminal Court may be defended by an advocate of their choice.
• The provision also covers a person against whom proceedings are instituted under the BNSS.
• The right to an advocate is an important component of fair criminal procedure.
• Article 22(1) also recognises the right of an arrested person to consult and be defended by a legal practitioner of their choice.
• Legal aid is distinct from the right to choose one’s advocate.
• Section 340 substantially corresponds to Section 303 of the CrPC.

ALSO READ: Section 339 – Permission to conduct prosecution

Conclusion

Section 340 BNSS protects one of the basic procedural rights of a person facing criminal proceedings: the right to legal representation through an advocate of their choice. The provision strengthens the fairness of criminal proceedings by ensuring that a person facing criminal allegations has the opportunity to obtain professional legal assistance and present an effective defence.