CRIMINAL LAW-II

FINAL DRAFT

Project Topic:
ROLE OF A DEFENCE LAWYER IN A CRIMINAL
PROCEEDINGS

Submitted by
PARTH SHARMA
Roll No. - 1543
4 Semester, 2nd Year, B.A.LL.B. (Hons.)
th

Submitted to
Fr. Peter Ladis
Faculty of Criminal Law-II

CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA
April, 2018.
 ACKNOWLEDGEMENT

I am thankful to my Faculty of Criminal Law-II, Fr. Peter Ladis, Professor of Law,

CNLU, Patna, who allotted me this research topic and guided me with his ideas, that how
to pursue this research topic.

I would also like to express my gratitude to the University Library, from where I had
managed to get the relevant books and web materials, which helped me in the completion
of this research topic.

At the end, I would like to thank my parents and few friends, who rendered their valuable
support for the completion of this research topic.

PARTH SHARMA
Roll No. 1543
4th Semester
2nd Year, B.A.LL.B. (Hons.)

II
 DECLARATION

I hereby declare that the work reported in the B.A.LL.B (Hons.) project report entitled “Role
of a defence lawyer in a criminal proceedings” submitted at Chanakya National law
University is an authentic record of my work carried out under the supervision of faculty of
Criminal Law-II, Fr. Peter Ladis. I have not submitted this work elsewhere for any degree. I
am fully responsible for the contents of my project report.

Parth Sharma

Roll no.: 1543

2nd Year, 4th Semester

B.A.LL.B.(Hons.)

III
 TABLE OF CONTENT

ACKNOWLEDGEMENT ................................................................................................................ II

DECLARATION .......................................................................................................................... III

TABLE OF CONTENT .................................................................................................................IV

CHAPTER-I INTRODUCTION ........................................................................................................ 1

CHAPTER-II PROVISIONS OF CRPC RELATED TO DELIVERY OF JUSTICE ................... 3

CHAPTER-III ROLE AND RESPONSIBILTY OF A DEFENCE LAWYER ............................. 7

CHAPTER-IV JUSTIFICATION AND CRITICAL APPRAISAL ............................................ 12

CHAPTER-V THE CHANGING ROLE OF A DEFENCE LAWYER ...................................... 13

CHAPTER-VI CONCLUSION .................................................................................................. 15

BIBLIOGRAPHY ......................................................................................................................... 16

IV
 CHAPTER-I
INTRODUCTION

No man should be condemned unheard. Justice is neither to be denied nor delayed.1

While the general purpose of criminal procedure is to provide a mechanism for the
administration of criminal law, its core object is “to ensure for the accused a full and fair trial
in accordance with the principles of natural justice”. Therefore trial procedure is a very
pivotal part of any criminal procedure. The criminal justice system is viewed as a three-part
system consisting of the judge and jury, the prosecutor, and the defense lawyer. Each part of
this system has a specific role.2 The role of the judge and jury is to render an impartial
decision based solely on the facts presented and the laws applicable to the charged offense. In
order to decide impartially, the judge and jury must be able to hear arguments from both
sides. The prosecutor's role is to argue the side of the state that seeks to prove the defendant's
guilt. The defense lawyer's role is to argue on behalf of the defendant. The defendant has no
burden of proof. That is, the defendant need not prove his innocence. It is enough simply to
point out ways in which the state has not established guilt.3

In this project the researcher has tried to explain the position of a defense lawyer in relation
to that of a prosecution by going through case-laws and judicial pronouncements.

Objectives of the study

The researcher is going to research the above topic with some of the objectives which is sited
below:

a) To understand the term defence lawyer,

b) To know the provisions and their interpretations related to defence lawyer and natural
justice,
c) To know the role and responsibilty of a defence lawyer.

Hypotheses

1
Union of India v J.N. Sinha AIR 1971 SC 40
2
Ram Gopal Chaturvedi v. State of Madhya Pradesh, AIR 1970 SC 158
3
Gopalan v. State of Madras, 1950 SCR 88

1
The Researcher has certain hypotheses regarding the research topic which are:

a) Role of the defence lawyer in Indian judicial system plays an important in delivery of
justice.
b) Provisions related to the defence mechanism are right and reasonable.

Research methodology

The researcher will be using doctrinal mode of research.

Sources of data

Primary Source: The Indian Penal Code, 1860, The Code of Criminal Procedure, 1973 and
various case laws.

Secondary Source: Textbooks, Websites, newspapers, reports, journals and articles.

Method of writing

The method of writing followed in the course of this research project is primarily
analytical.

Mode of Citation

The researcher has followed a uniform mode of citation throughout the course of this
project.

LIMITATIONS OF THE STUDY

Due to the broad area and extensiveness of the doctrinal research, the researcher has to be
dependent only upon the limited area of her doctrinal research.

2
 CHAPTER-II
PROVISIONS OF CRPC RELATED TO DELIVERY OF
JUSTICE

The adversary system of criminal trial, which we have adopted, states that the state using its
investigate resources and employing a competent prosecutor to prosecute the accused, will
employ an equally competent defense counsel to challenge the prosecution.4 Therefore, both
the constitution of India and the code of criminal procedure on the accused a right to consult
and to be defended by a legal practitioner of his choice. The accused’s right to have a lawyer
f his choice is also a constitutional right under Article 22. Section 303 provides that after
initiating any proceeding against the accused, the accused should be defended by a lawyer of
his choice. On the other hand S.304 requires the court under certain circumstances to arrange
lawyer for his defense at the state’s expenses. Article 39-A also provides free legal aid
,because as per this directive principles this is the duty of the state to provide free legal aid.
The supreme court, held that conviction of the accused in a trial in which he was not provided
any defense lawyer would be set aside as being violative of Article 21 of the constitution.5
Similarly, certain guide lines have been given which has been included in the Croc. Section
41(A) to 41(D) has been inserted.67

1. Whenever any police officer is going to arrest and interrogate any person, he must
bear accurate, visible & real identification.

2. The particulars of all the arrested persons and the police officers who made the arrest
must be maintained in a register.

3. The police officer is required to prepare a memo, signed by the police officer who
made the arrest and any family member of the accused.

4. After the arrest, a routine medical checkup after every interval of 48 hours to find out
any injury on the part of the arrested person. It helps as an evidence to stop the
custodial violence by a police officer. Supreme Court further said that if there is any
violation of these guidelines a departmental proceeding will be initiated and it will
amount to contempt of court.

4
Duncan Agro Industries Ltd. v. Union of India,1989 (39) E.L.T. 211 (Del.)
5
Sukh dev v State of Arunachal Pradesh
6
Mali Math committee
7
D.K. Basu V State of W.B.

3
 A procedure which keeps large number of people behind bars without trial for long,
cannot possibly be regarded as "reasonable, just or fair" so as to be in conformity with the
requirement of Art. 21. It is necessary, therefore, that the law as enacted by the
Legislature and as administered by the courts must radically change its approach to pre-
trial detention and ensure `reasonable, just and fair' procedure which has a creative
connotation after the decision of the Supreme Court in Menka Gandhi's case. Speedy trial
is of the essence of criminal justice and, therefore, delay in trial by itself constitutes
denial of justice. Though speedy trial is not specifically enumerated as a fundamental
right, it is implicit in the broad sweep and content of Art. 21. Speedy trial which means
reasonably expeditious trial, is an integral part of the fundamental right to life and liberty
enshrined in Art. 21. Art. 21 confers fundamental right on every person not to be deprived
of his life or liberty except in accordance with the procedure prescribed by law and it is
not enough to constitute compliance with the requirement of that Article that some
semblance of a procedure should be prescribed by law, but that the procedure should be
"reasonable, fair and just". If a person is deprived of his liberty under a procedure which
is not "reasonable, fair or just", such deprivation would be violative of his fundamental
right under Art. 21 and he would be entitled to enforce such fundamental right and secure
his release. Any procedure prescribed by law for depriving a person of his liberty cannot
be "reasonable, fair or just" unless that procedure ensures a speedy trial for determination
of the guilt of such person.8

Expeditious trial and freedom from detention are part of human rights and basic freedoms.
The judicial system which permits incarceration of men and women for long periods of time
without trial is denying human rights to such under trials and withholding basic freedoms
from them. Law has become for them an instrument of injustice and they are helpless and
despairing victims of the callousness of the legal and judicial system.9

One reason why our legal and judicial system continually denies justice to the poor by
keeping them for long years in pretrial detention is the highly unsatisfactory bail system,
which suffers from a property oriented approach. It proceeds on the erroneous assumption
that risk of monetary loss is the only deterrent against fleeing from justice. Even after its re-
enactment, the Code of Criminal Procedure continues to adopt the same antiquated approach.
Where an accused is to be released on his personal bond, it insists that the bond should

8
Maneka Gandhi v Union of India 1978 AIR 597
9
Ajit Singh v State of U.P. AIR 2006 SC 658

4
contain a monetary obligation requiring the accused to pay a sum of money in case he fails to
appear at the trial.10 Moreover, as if this were not sufficient deterrent to the poor, the courts
mechanically and as a matter of course insist that the accused should produce sureties who
will stand bail for him and these sureties must again establish their solvency to be able to pay
the amount of bail in case the accused fails to appear to answer the charge.This system of
bails operates very harshly against the poor and it is only the non-poor who are able to take
advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail
even without sureties because very often the amount of the bail fixed by the Court is so
unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or
the Magistrate about their solvency for the amount of the bail and where the bail is with
sureties, as is usually the case, it becomes an almost impossible task for the poor to find
persons sufficiently solvent to stand as sureties. The result is that either they are fleeced by
the police and revenue officials or by touts and professional sureties and sometimes they have
even to incur debts for securing their release or, being unable to obtain release, they have to
remain in jail until such time as the court is able to take up their cases for trial, leading to
grave consequences, namely, (1) though presumed innocent, they are subjected to
psychological and physical deprivations of jail life, (2) they are prevented from contributing
to the preparation of their defense and (3) they lose their job, if they have one, and are
deprived of an opportunity to work to support themselves and their family members with the
result that the burden of their detention almost invariably falls heavily on the innocent
members of the family.11

Under Art. 22(1) a person arrested has the constitutional right to consult a legal practitioner
concerning his arrest; and, a person who has been arrested as well as one who though not
arrested runs the risk of loss of personal liberty as a result of a trial, have the constitutional
right to be defended by an advocate of their choice. But in a trial under a law which does not
provide for an order resulting in the loss of his personal liberty, he is not entitled to the
constitutional right, because, the Article is concerned only with giving protection to personal
liberty. The Act does not give any power to deprive any one of his personal liberty either by
way of arrest before the trial or by way of sentence of imprisonment as a result of the trial;
nor does it deprive an arrested person of his constitutional right to take steps against the arrest
or to defend himself at a trial which might occasion the loss of his personal liberty. The fact

10
M.J. shivani v State of Karnatka
11
A.K. Kraipak v. Union of India (1970) 1 SCR 457

5
that the respondents were arrested under another statute, namely, the Criminal Procedure
Code cannot make either the section or the Act void. Therefore, hold that s. 63 of the Madhya
Bharat Panchayat Act, 1949 is violative of Art. 22(1) and is void to the extent it denies any
person who is arrested the right to be defended by a legal practitioner of his choice in any
trial of the crime for which he is arrested. Most of the safeguards embodied in cls. (1) and (2)
of Art. 22 are to be found in the Code of Criminal Procedure. But the Constitution makes the
fundamental change that the rights guaranteed by clause (1) and (2) of Art. 22 are no longer
at the mercy of the legislature. No legislature can enact a law which is repugnant to the
Constitution. A pre-Constitution law which is inconsistent with the provisions of Art. 22 is, to
the extent of such inconsistency, void. The next question is whether the trial and convictions
were illegal. During the trial, the respondents never claimed that they should be defended by
counsel. Had they wanted the assistance of counsel, the Nyaya Panchayat might have under s.
79(c) returned the complaint for being filed before a magistrate. They were happy and
content to be tried before the Nyaya Panchayat without the assistance of counsel. There was
no occasion for enforcing the provisions of s. 63 against them. Even if s. 63 were repealed or
struck down before the trial, they would not have engaged any counsel for their defense. The
existence of s. 63 on the statute book did not cause them any prejudice. In the circumstances,
the High Court ought not to have quashed the trial and convictions. In the result, we declare
that s. 63 of the Madhya Bharat Panchayat Act is violative of Art. 22(1) of the Constitution,
and is void to the extent that it denies any person who is arrested, the right to be defended by
a legal practitioner of his choice in any trial of the crime for which he is arrested. Subject to
this declaration, the appeal is allowed, the order of the High Court is set aside and the
convictions and sentences passed by the Nyaya Panchayat, Barwani are restored. 12

12
East India Company v Official Liquidator, 1970 GLR 457

6
 CHAPTER-III
ROLE AND RESPONSIBILTY OF A DEFENCE LAWYER
A criminal lawyer is one who is expertise in handling different types of case and law related
to crime. The ultimate task of this law person is to offer its services to the people who are
been charged under the crime act and sue the accused for such crime. On the other hand, the
basic idea of using the services of qualified law person is to get a lawyer for ourselves whose
work is to fight for us and to achieve success in the courtroom. As it is a known fact that
there are many sections included in the criminal law there are various categories too which
are involved in criminal lawyers. The selection of law person is based upon the category of
the crime and the issue under which the person has been charged for committing the crime.
Thus to help you in finding out the best criminal lawyer, it is very essential for you to know
various sections and categories involved in the crime.13

Those individuals who are charged for committing crime such has abduction, murder, hit and
run, sex violence, theft, rape, and domestic violence and other such type of crime will be
looking for the person who is experienced in dealing such cases in court. A criminal defense
lawyer is one such person who will offer its service to those people that are charged under
these kinds of crimes. Such qualified persons will first start off their services by having a
conversation with the accused party. From such communication they will try to investigate on
various points and will come to know the exact details of the event. These law protecting
people are always high in demand as for the reason they are the one who fight for the justice
on behalf of accused.14

A defense attorney is a lawyer representing the defendant in a criminal trial. Most defense
attorneys specialize in criminal defense, and some further narrow their practice to specific
types of criminal defense. A defense attorney can work as part of a large or small law firm, or
a private practice. Like all attorneys, a defense attorney is a highly educated professional and
a member of the state bar.15

The defense attorney's purpose is to represent his client's best interests. The responsibilities
this might include range from gathering evidence and presenting it in court, to negotiating

13
http://defensewiki.ibj.org/index.php/The_Role_and_Responsibility_of_a_Criminal_Defense_Lawyer
14
https://justice.alberta.ca/programs_services/about_us/Pages/defence_counsel_roles.aspx
15
www.lawyersclubindia.com

7
bail, to managing media attention through press releases or conferences, to plea bargaining.
Ideally, the defense attorney gets the client acquitted or has the charges against her dropped,
but this is simply not realistic in the majority of criminal cases.

If a case advances to a trial, the most important goal of the defense attorney is to create a
reasonable doubt in the minds of the jurors. This can be done in a variety of ways, from the
introduction of exculpatory evidence, to the discrediting of adverse witnesses. The defense
attorney is not limited in the sorts of tactics, as long as they are ethical and legal, that he can
undertake to convince a jury that his client might not be guilty. The defense attorney himself
should appear credible and professional in a criminal case and should not be underestimated.
Not only does he need to be skilled in criminal pleadings, quickly and effectively draft
motions, to examine evidence, and to request search warrants if necessary, interviewing
clients, witnesses to the crime and the law enforcement officers who initiated the arrest.16

Information given to a defense attorney by his client is generally confidential but when there
is national security interest at stake they would try to extract sensitive information’s from
their clients and to disclose them.

The criminal justice system recognizes that in a criminal proceeding the state is asserting its
ultimate authority over a single civilian; the defense carefully observes the use of this
authority. Furthermore, different safeguards are in place to prevent abuse of the state's power.

The state bears the highest burden of proof, and must show that a defendant is guilty beyond
a reasonable doubt of the crimes he is charged with.17

No burden is placed on the defendant. That is, he need not present any evidence and he need
not testify or give his own version of events. The state may not comment on the defendant's
decision not to testify and the jury may not consider it in evaluating the case.

Many procedures are in place related to the investigation and the arrest of the defendant to
ensure all evidence is accurate and that the correct person is charged with a crime.

Defendants possess civil rights to ensure they are treated fairly and given an opportunity to
argue their case.

16
Ishwar Chand v State of Haryana , 2009
17
Mohd. Hussain V State (NCT) , 1987

8
Safeguards, however, are useless without someone to guarantee or police them. This is the
job of the defense lawyer.The defense lawyer presents all evidence to rebut the prosecutor's
arguments and challenges all questionable assertions of facts by the prosecutor to ensure that
the high burden of proof is met.The defense lawyer challenges procedural errors and may
seek to have charges dismissed because of unreliable evidence or testimony.The defense
lawyer informs the defendant of his rights and defends those rights to ensure they have not
been violated.18

Being charged of robbery when the accused is not at fault can be a harrowing and traumatic
experience. This is where a criminal attorney emerges out to offer help. Criminal law is a
successful and a rewarding career option that provides you with a lot of challenges and
opportunities to move further. There are many law schools, which help aspiring lawyers to
take pride in displaying their skills and expertise in this field.

Theft is a very common crime and criminal lawyers can easily provide help in cases of
robberies where the victim accuses someone of having committed the crime without definite
evidences. The accused, in such a scenario, can seek help from a theft criminal lawyer to
fight for their rights and avail protection. Even if there had been an unfortunate situation
where the accused was caught in the act, unintentionally, the criminal lawyer must provide
help after getting a detailed understanding of the situation.A criminal lawyer plays an
extremely important role in defending clients. As a criminal lawyer, you are expected to
perform certain duties when confronted with a case where an accused needs help to regain his
identity and liberty. Gather as much information as possible from the victim who has been
robbed. If possible, visit the place to collect proof or any other valuable information that
could strengthen your case. Talk to the witnesses present, if any, and collect any information
they provide. You could also work extensively on collecting evidence if required without
involving any of these. This way, you cannot let any of them manipulate your information.19

As a criminal attorney you must focus on all aspects of the case. Even if your defendant is at
fault, this will have to be presented to them smartly and you should suggest measures to
tackle the problem.

A criminal lawyer should be fully aware of individual’s rights and emphasize on the same
when dealing with clients of the opposing party.A criminal lawyer may be expected to appear

18
Ram Awadh v. State of U.P. 1999 Cr.L.J. 4083
19
Court on its own motion v State WP (Crl.) No. 796 of 2007

9
at the court a number of times. This should be done by them promptly and the client also
needs to be updated on the proceedings of the court.A criminal defense lawyer explains the
punishment of the crime in detail to his client and works out methods in obtaining a fair
conviction to both the parties.A criminal attorney should be able to judge the situation and be
sharp to identify and relate to situations and come up with strategies to support the case.

The Defense Lawyer as the First Line of Defense for Defendant When Facing
the State

It is important for a defendant to obtain the help of a defense lawyer as early as possible.
There are many actions a defense lawyer can take to protect and aid a defendant in the early
stages that may not be possible as the case progresses.The defense lawyer can inform the
defendant of his rights at the outset (such as the right to remain silent) so that the defendant is
aware of them and can benefit from them.The defense lawyer can seek the temporary release
of the defendant through bail, allowing the defendant to better assist in the preparation of a
defense.The defense lawyer can negotiate with the prosecutor to have charges reduced or
even dropped.20

In addition, the defense lawyer is able to counsel the defendant on different strategies and
arguments that can be used in the case as well as the benefits and drawbacks for each one.The
defense lawyer works with the defendant and other witnesses to understand the defendant's
version of events and to determine an appropriate defense (e.g., alibi, self-defense, and
misidentification).

The defense lawyer can provide advice on what plea to enter, whether to accept a plea
agreement, whether to waive a jury trial, and whether the defendant should testify on his own
behalf.The defense lawyer can determine which witnesses to call and how they should be
examined.The defense lawyer can determine which potential jurors might be biased against
the defendant and seek to remove them from the jury panel.21

20
Ram Awadh v state of U.P.
21
http://moritzlaw.osu.edu/osjcl/Articles/Volume7_2/Flowers-FinalPDF.pdf

10
 Important role and responsibilities of criminal attorney have been discussed
below:

• Gathering information about the case is one of the major tasks performed by criminal
defense lawyer. He gathers information from all witnesses present at the time when criminal
act was carried out. He understands the case properly and puts forward its negative and
positive aspects in front of clients. In some of the cases, he also sits with the prosecutor for
reducing the charges faced by their clients to some extent.

• A criminal defense attorney looks after all aspects of a case. In some cases, he also hires
investigators for collecting evidences and proving his clients innocent.

• Criminal lawyers play an important role of protecting an individual's rights,

• Defense attorney makes most of the court appearances for his clients which mean they need
not to leave their important task for making an appearance in the court. Not only this, he
keeps his clients up to date regarding what has happened in all those court appearances and
that too on a regular basis.

• He makes his clients aware of the possible punishments for their crimes. Moreover, He also
explains his methods and policies to help clients get a fair conviction.

• Criminal defense attorney deals with criminal charges like impaired driving, marijuana
grow operations, driving while prohibited, dangerous driving, administrative driving
prohibitions and all other driving offences, theft, fraud, shoplifting, communicating for the
purpose of prostitution , assault such as spousal or domestic assault etc.

Thus, it becomes clear that the criminal lawyer plays an important role of defending his
clients charged with any of the criminal offences. There are many lawyers who have been
assisting clients in this regard. One can refer internet websites for finding out a reliable
criminal attorney for a legalized defense in the court of law. Some of the criminal lawyers
maintain their own dedicated websites to help clients in this regard. One can go through all
these sites to form a sound decision regarding the selection of criminal lawyer.22

22
Hussainara Khatoon & Ors. V State of Bihar AIR 1979 SC 1360

11
 CHAPTER-IV
JUSTIFICATION AND CRITICAL APPRAISAL
Defense lawyers are ethically bound to represent all clients even those they know are guilty.
Here the concept of actual guilt and legal guilt is relevant. They aim to help the criminal just
punishment for his crime. Morally the defender becomes accomplice in the criminal’s escape.
The criminal justice system operates in a racist manner; criminal sentences are often savagely
harsh; and conditions of imprisonment in many jurisdictions are inhuman. For these reasons,
"A lawyer performs good work when he helps to prevent the imprisonment of the poor, the
outcast, and minorities in shameful conditions". Here too, the argument, strong as it is, is
open to doubt. It does not apply to prosperous white-collar criminals, racial-majority
defendants, or those whose punishments are not excessively harsh. 23

The system of criminal justice requires partisanship principle. The proseecutor will represent
state’s case and so defense counsel has to concentrate forcefully as possible to defend the
accused. So defense lawyer should not be make morally accountable for defending their
clients. Another version of the argument focuses on liberal fear of the state. It seems too
unfair to pit the might of the state against a solitary defendant, even a guilty one, without
providing the defendant with a defense lawyer.

The other argument is that aggressive defender disciplines the prosecutor to make their job
and thus protects the freedom of the innocent. One other version of this argument seems valid
and uncontroversial, however. Prosecutors often charge defendants with multiple crimes, or
choose the most serious among several possibilities. One crucial role the defender plays is
that, when prosecutors press for the harshest sentence, the defender highlights facts that point
toward leniency. For example manslaughter rather than murder. Without the defender,
prosecutors have little incentive to be careful in their charging decisions and sentencing
recommendations.24

Lawyers thus respond with several arguments about the justification of representing the guilty
person and, moreover, representing the guilty as vigorously as the innocent. Each of these
arguments has force, but each is open to criticism.

23
State of Haryana v Ram Meher AIR 2016 SC 656
24
Shiva Reddy v State of Karnataka CrLJ 1997 9875

12
 CHAPTER-V
THE CHANGING ROLE OF A DEFENCE LAWYER
The criminal justice system is viewed as a three-part system consisting of the judge and jury,
the prosecutor, and the defense lawyer. Each part of this system has a specific role. The role
of the judge and jury is to render an impartial decision based solely on the facts presented and
the laws applicable to the charged offense. In order to decide impartially, the judge and jury
must be able to hear arguments from both sides. The prosecutor's role is to argue the side of
the state that seeks to prove the defendant's guilt. The defense lawyer's role is to argue on
behalf of the defendant. The defendant has no burden of proof. That is, the defendant need
not prove his innocence. It is enough simply to point out ways in which the state has not
established guilt (e.g., an eyewitness has poor eyesight or an accuser has a motive to lie).

The criminal justice system recognizes that in a criminal proceeding the state is asserting its
ultimate authority over a single civilian; the defense carefully observes the use of this
authority. Furthermore, different safeguards are in place to prevent abuse of the state's power.

The state bears the highest burden of proof, and must show that a defendant is guilty beyond
a reasonable doubt of the crimes he is charged with.

No burden is placed on the defendant. That is, he need not present any evidence and he need
not testify or give his own version of events. The state may not comment on the defendant's
decision not to testify and the jury may not consider it in evaluating the case.

Many procedures are in place related to the investigation and the arrest of the defendant to
ensure all evidence is accurate and that the correct person is charged with a crime.

Defendants possess civil rights to ensure they are treated fairly and given an opportunity to
argue their case.

Safeguards, however, are useless without someone to guarantee or police them. This is the
job of the defense lawyer.The defense lawyer presents all evidence to rebut the prosecutor's
arguments and challenges all questionable assertions of facts by the prosecutor to ensure that
the high burden of proof is met.The defense lawyer challenges procedural errors and may
seek to have charges dismissed because of unreliable evidence or testimony.The defense
lawyer informs the defendant of his rights and defends those rights to ensure they have not
been violated.

13
The defense lawyer can inform the defendant of his rights at the outset (such as the right to
remain silent) so that the defendant is aware of them and can benefit from them.

The defense lawyer can seek the temporary release of the defendant through bail, allowing
the defendant to better assist in the preparation of a defense.

The defense lawyer can negotiate with the prosecutor to have charges reduced or even
dropped.

In addition, the defense lawyer is able to counsel the defendant on different strategies and
arguments that can be used in the case as well as the benefits and drawbacks for each one.

The defense lawyer works with the defendant and other witnesses to understand the
defendant's version of events and to determine an appropriate defense (e.g., alibi, self-
defense, misidentification).25

The defense lawyer can provide advice on what plea to enter, whether to accept a plea
agreement, whether to waive a jury trial, and whether the defendant should testify on his own
behalf.

The defense lawyer can determine which witnesses to call and how they should be examined.

The defense lawyer can determine which potential jurors might be biased against the
defendant and seek to remove them from the jury panel.26

The role of the criminal defense lawyer is changing in the wake of a Supreme Court decision
that is imposing new obligations on lawyers to advise clients about the consequences of
criminal conviction. The supreme court judgement in march 2010 in padilla Kentucky[10]
held to establish a task force to help criminal defense lawyer in understanding and meet new
responsibilities towards their clients. New task force is needed because clients need more
than good advice about the consequences of a guilty plea. Now criminal defense lawyer
might help by broadening the scope of their representation beyond the criminal cases or, by
collaborating with other professionals. Thus it gave the broader implication to the role of
defense lawyer from lower level of consciousness to a higher level.27

25
www.justice.gc.ca › Home › Criminal Justice › Victims
26
https://www.cliffsnotes.com/.../criminal.../defense-attorneys/the-adversary-justice-system
27
T. Muniswamy vs State Of Mysore AIR 1964 Kant 250, AIR 1964 Mys 250, (1963) 2 MysLJ

14
 CHAPTER-VI
CONCLUSION

Till now we have in turn analyzed the principle behind the strong and inevitable role of
criminal defense lawyer, which stems from the reluctance of modern criminal law maxims.
the criminal defense lawyer are assigned by our justice system for a variety of tasks. They
explain to their clients what is happening and make sure that all the clients are acknowledged
of their rights provided by law and aware of what is happening. The defense counsel protects
all those rights which are afforded to every citizen by law. The lawyer challenge the
prosecution case, conduct and occasion and take over the prosecution case, call, examine any
witness in court and makes every possible effort to minimize the damages to defendant.

We often take these protections for granted, or that do little but allow criminals to escape
justice. It is easy, and often tends to dismiss defense lawyers (and, for that matter, all
lawyers) whose only function is to confuse juries and confound courts. And sometimes,
defending people who are clearly guilty, it may seem that defense lawyers are a needless
extravagance. But just as crimes come in a variety of shapes and sizes, criminals are often
indistinguishable from the ordinary citizen, in fact some of us only come to realize when we
find ourselves seated at the defendant's table, with fingers pointing at us. It is then that we
realize just how critical a vigorous and independent defense bar is to a free society--allowing
ordinary citizens to challenge the actions of their own government.

Defense lawyer is often misunderstood to make every one’s life difficult and his job as a
safeguard against tyranny. In fact the defense lawyer’s role and job is very critical. Imagine
what would happen if government decide whom to jail without their actions to test of law.
Freedom of all of us will be in the hand of government bureaucrats-people. The law exists to
safeguard our life and liberty but without the means and functionaries to challenge the actions
of our own government, there will be a little protection for common citizens.

Among the first casualties of Nazi Germany and Stalinist Russia was the independence of the
courts and the legal profession. There was nothing to protect common people against the
unbridled assertion of governmental power--no matter how misguided, petty, or malevolent it
might prove to be. But it is the rare government that will attack its own citizens directly. Thus
criminal defense lawyer has a prominent role to play in our criminal justice system.

15
 BIBLIOGRAPHY

The Constitution of India.

Legislations

 The Code of Criminal Procedure, 1973.

 The Indian Penal Code, 1860.
 Indian Evidence Act,1872

Government Reports

 Mali Math report

Websites

i) Manupatra
ii) www.inrebus.com/legalmaxims
iii) www.lexisnexis.com
iv) www.legalserviceindia.com
v) www.lawyersclubindia.com

Books

i) Chandrasekharan Pillai, R.V. Kelkar’s on Criminal Law, 4th Edition, Eastern Book
Company.

ii) Dr. N.V. Paranjape, The Code of Criminal Procedure,2nd Edition, Central Law Agency,
Allahabad.

iii) S.N.Misra, The Code of Criminal Procedure,14th Edition, Central Law Publication,
Allahabad.

iv) Durga Das Basu, Criminal Procedure Code, 4th edition2010, Vol II, Lexisnexis
ButterworthsWadhwa

v) Dr.M.D.Chaturvedy, Code Of Criminal Procedure, 1st edition, Allahabad Law Agency.

16
Dictionary

 Black’s Law Dictionary.

17