CrPC 304 vs BNSS 341: Free Legal Aid to Accused Explained (2026)

In India, Section 341 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 304 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. The court must now assign a State-paid defence advocate to an unrepresented accused without means in any "trial or appeal before a Court", not only in a Sessions trial.

At a glance

CrPC	BNSS	Provision	Key rule (BNSS text)	Change
304(1)	341(1)	Duty to assign defence advocate	In "a trial or appeal before a Court", if the accused is not represented and "has not sufficient means to engage an advocate", the Court "shall assign an advocate for his defence at the expense of the State"	Expanded
304(2)	341(2)	High Court rules	Rules, with the State Government's previous approval, on selection, facilities and fees of such advocates	Minor edit
304(3)	341(3)	State notification extending the section	State Government may apply sub-sections (1) and (2) to any class of trials before other Courts	Identical
303	340	Right to be defended	Accused "may of right be defended by an advocate of his choice"	Minor edit

Section 341 is a procedural provision with no First Schedule classification. The heading "Legal aid to accused at State expense in certain cases" is unchanged.

What changed

Expanded — Section 341(1): "Where, in a trial before the Court of Session" becomes "Where, in a trial or appeal before a Court". On the face of the text, the duty now reaches every criminal court and extends to appeals.
Minor edit — Section 341(1): "not represented by a pleader" becomes "not represented by an advocate"; "means to engage a pleader" becomes "means to engage an advocate"; "assign a pleader for his defence" becomes "assign an advocate for his defence". The test — the accused "has not sufficient means" — and the words "at the expense of the State" are unchanged.
Minor edit — Section 341(2): "pleaders" becomes "advocates" in clauses (a), (b) and (c). The rule-making power of the High Court, "with the previous approval of the State Government", is unchanged.
Identical — Section 341(3): the State Government may still, by notification, apply sub-sections (1) and (2) "in relation to any class of trials before other Courts in the State as they apply in relation to trials before Courts of Session". On a reading of the text, this sub-section adds little now that sub-section (1) already covers "a Court", but it was carried over unchanged.
Minor edit — Section 340 (CrPC 303): "this Code" becomes "this Sanhita" and "a pleader of his choice" becomes "an advocate of his choice".

Statutory text (relevant extract)

Extract, Section 304(1) CrPC (repealed from 1 July 2024):

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.

Extract, Section 341(1) BNSS:

Where, in a trial or appeal before a Court, the accused is not represented by an advocate, and where it appears to the Court that the accused has not sufficient means to engage an advocate, the Court shall assign an advocate for his defence at the expense of the State.

Extract, Article 39A of the Constitution of India:

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 …

How it works

Section 341(1) BNSS has four conditions and one consequence.

A trial or appeal before a Court — any criminal court, at trial or in appeal. The words do not name a stage before trial (investigation, remand or bail); the Supreme Court's directions in Ashok (below) cover those stages under Article 21.
The accused is not represented by an advocate — the section applies where the accused has no advocate representing him.
Lack of means — it must "appear to the Court" that the accused "has not sufficient means to engage an advocate". The section sets no income figure; the Court forms its own view.
No objection — the section does not say so, but the Supreme Court in Suk Das described the State's duty as subject to the proviso that "the accused person does not object to the provision of such lawyer" (report page 594).
Consequence — "the Court shall assign an advocate for his defence at the expense of the State". The word "shall" makes this a duty of the Court, not a discretion.

Rules and fees (Section 341(2)): the High Court may make rules, with the State Government's previous approval, on (a) the mode of selecting advocates, (b) the facilities the Courts allow them, and (c) the fees the Government pays them.

The wider legal-services framework: Section 12 of the Legal Services Authorities Act, 1987 lists persons entitled to legal services under that Act, including a person "in custody" (clause (g)). Section 341 BNSS operates through the trial or appellate Court itself; the two are separate routes.

What this means in practice

For an unrepresented accused

Tell the Court you cannot afford an advocate. Section 341(1) requires the Court to assign one at State expense if it appears you lack sufficient means, in a Magistrate's court as much as a Sessions court.
You may still choose your own advocate: Section 340 BNSS preserves the right to be defended "by an advocate of his choice".
If a trial proceeds without an advocate and without the Court telling you of your right to legal aid, the conviction may be challenged on appeal (Suk Das, below).

For the trial court

The duty arises "where it appears to the Court" — no application is needed. Ashok directs that the Court make the accused aware of the right to free legal aid at all material stages, including framing of charge and recording of evidence (para 23(f)).
Record the offer of legal aid and the accused's response in the order sheet.
Give appointed counsel time to prepare. Anokhilal set aside a conviction where counsel appointed through legal services was appointed on the day the charges were framed and the trial ended within a fortnight (paras 15, 19-20).

For the Public Prosecutor

Ashok holds that when the accused is not represented, the Public Prosecutor must point out to the Court the need to provide free legal aid, and must request the Court not to proceed with charge or examination-in-chief without offering it (para 23(b) and (c)).

For appeals

On a reading of Section 341(1), an unrepresented appellant without means is now entitled to a State-assigned advocate from the appellate Court itself, a situation Section 304(1) CrPC did not cover.

Judgments that still matter

Suk Das & Anr. v. Union Territory of Arunachal Pradesh, [1986] 1 S.C.R. 590 — 10 March 1986. A three-Judge Bench (P.N. Bhagwati C.J., D.P. Madon and G.L. Oza JJ.; judgment by Bhagwati C.J.) allowed the appeal of an accused convicted under Section 506 read with Section 34 IPC, in a warrant-case trial before an Additional Deputy Commissioner, who had gone unrepresented because of poverty. The High Court had upheld the conviction because he never applied for legal aid. The Supreme Court held that free legal assistance at State cost is a fundamental right implicit in Article 21 for a person accused of an offence that may involve jeopardy to life or personal liberty (report page 594), that it "would make a mockery of legal aid" if it were left to a poor, ignorant and illiterate accused to ask for it (page 595), and that failure to inform the accused of the right vitiated the trial. The conviction was set aside; the Court directed reinstatement in service without back wages and that no fresh trial be held (page 597). The report prints no paragraph numbers. The case concerned a non-Sessions trial that Section 304(1) CrPC did not reach; Section 341(1) BNSS now covers such a trial in its own words.

Anokhilal v. State of Madhya Pradesh, [2019] 18 S.C.R. 1196 (2019 INSC 1399) — 18 December 2019. Uday Umesh Lalit, Indu Malhotra and Krishna Murari JJ. set aside a conviction and death sentence and directed de novo consideration, because counsel appointed through legal services was appointed on the same day the charges were framed and the trial concluded within a fortnight (para 15); the Court held he "ought to have been afforded sufficient opportunity to study the matter" and that the failure "resulted in miscarriage of justice" (para 19). It laid down norms: where a life or death sentence is possible, only advocates with a minimum of ten years' practice should be considered for appointment; Senior Advocates should first be considered in death-reference matters in the High Court; appointed counsel should normally get a minimum of seven days to prepare; and counsel should be allowed to meet the accused (para 22).

Post-2024 judgment

Ashok v. State of Uttar Pradesh, [2024] 12 S.C.R. 335 (2024 INSC 919) — 2 December 2024. Abhay S. Oka, Ahsanuddin Amanullah and Augustine George Masih JJ. (judgment by Oka J.) allowed the appeal and acquitted the appellant (para 24). On legal aid, the Court held that "the right to get legal aid is a fundamental right of the accused, guaranteed by Article 21", that it is the trial court's duty to inform an unrepresented accused of the right to free legal aid, and that Sections 340 and 341 BNSS correspond to Sections 303 and 304 CrPC (para 20). It noted that the examination-in-chief of a prosecution witness had been recorded while the appellant was unrepresented (para 22). Its conclusions and directions (para 23) include: the Court must ensure proper legal aid; an unrepresented accused is entitled to free legal aid "at all material stages starting from remand", including bail petitions; the Anokhilal ten-year norm applies to cases where a life or death sentence is possible; the same legal aid advocate should continue through the trial unless there are compelling reasons; and legal aid "must be effective". The Court directed that the judgment be sent to all State Legal Services Authorities (para 25).

Which law applies to your case

Section 531(2)(a) BNSS provides that any trial, appeal or inquiry pending immediately before 1 July 2024 is continued in accordance with the CrPC "as if this Sanhita had not come into force". On a reading of that text, Section 304 CrPC governs legal aid in such a trial, while a trial or appeal begun on or after 1 July 2024 falls under Section 341 BNSS. The Article 21 right recognised in Suk Das and Ashok does not depend on either Code. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 304 CrPC? Section 341 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 304 CrPC. Where, in a trial or appeal before a Court, the accused is not represented by an advocate and it appears to the Court that the accused has not sufficient means to engage one, the Court shall assign an advocate for the defence at the expense of the State.

Is free legal aid now available in Magistrate trials and appeals? Yes, on the text of Section 341(1) BNSS, which applies to 'a trial or appeal before a Court'. Section 304(1) CrPC was confined to a trial before the Court of Session, and other Courts were covered only if the State Government issued a notification under Section 304(3). The Supreme Court had already held in Suk Das (1986) that free legal assistance for an accused who cannot afford it is part of Article 21.

Does the accused have to apply for legal aid? Section 341(1) BNSS makes it the Court's duty to assign an advocate where it appears that the accused lacks means; it does not require an application. In Suk Das v. Union Territory of Arunachal Pradesh (1986) the Supreme Court held that a conviction was vitiated where the court did not inform an indigent accused of the right to free legal aid, and in Ashok v. State of Uttar Pradesh (2024) it said the trial court must inform the accused of that right.

What experience must a legal aid advocate have in a murder or death-penalty case? In Anokhilal v. State of Madhya Pradesh (2019) the Supreme Court laid down that where a life sentence or death sentence is possible, only advocates with at least ten years' practice should be considered for appointment as amicus curiae or through legal services, and that appointed counsel should normally get a minimum of seven days to prepare. Ashok v. State of Uttar Pradesh (2024) repeated the ten-year norm for criminal-side practice.

Can the accused get legal aid at the remand and bail stage? In Ashok v. State of Uttar Pradesh (2024) the Supreme Court concluded that an accused who is not represented by an advocate is entitled to free legal aid at all material stages starting from remand, including to file bail petitions. Section 341(1) BNSS itself speaks of a trial or appeal; the remand-stage entitlement rests on the judgment and Article 21.

Who pays the legal aid advocate and how is the advocate chosen? Section 341(1) BNSS says the advocate is assigned at the expense of the State. Under Section 341(2), the High Court may, with the previous approval of the State Government, make rules on the mode of selecting advocates, the facilities allowed to them by the Courts, and the fees payable to them by the Government.

Which law applies to a trial pending on 1 July 2024? Section 531(2)(a) BNSS provides that a trial or appeal pending immediately before 1 July 2024 is continued in accordance with the CrPC as if the BNSS had not come into force. On a reading of that text, Section 304 CrPC governs such a trial; the constitutional right to legal aid under Article 21 applies whichever Code governs.

Sources

Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 340, 341 and 531.
Code of Criminal Procedure, 1973 (India Code text): Sections 303 and 304.
Constitution of India: Article 39A (Veritect Bare Act library).
Legal Services Authorities Act, 1987: Section 12 (Veritect Bare Act library).
Judgments read in full text: Suk Das & Anr. v. Union Territory of Arunachal Pradesh (1986_1_590_597_EN.md); Anokhilal v. State of Madhya Pradesh (2019_18_1196_1235_EN.md); Ashok v. State of Uttar Pradesh (2024_12_335_357_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.

Section 304 CrPC vs Section 341 BNSS — Legal Aid to Accused at State Expense