GULAB C. GUPTA, J.

( 1 ) BY this order, the right of the appellant to be represented by an Advocate at State expense purporting to be under section 304, Cr. P. C. read with Article 21 of the Constitution of India, is being decided and since this question arises in almost every jail appeal, it is decided by a separate order so that it governs all such pending appeals.

( 2 ) THE appellant remains convicted for an offence punishable under section 376, I. P. C. and sentenced to five years R. I. He is in jail since 18. 2. 1986. Record of the Sessions Trial indicates that on 17. 7. 1986, he informed the learned Sessions Judge that he was not in a position to engage an Advocate to defend himself. The Court, therefore, appointed one Shri S. P. Sharma, Advocate, as amicus curiae to defend him. He was accordingly defended. After his conviction in the Sessions Trial, the appellant sent this appeal to this Court, while undergoing jail sentence at Central Jail, Raipur. This Court seems to have a system of providing legal aid to persons filing appeals from jail. Following the aforesaid system, this Court appointed one Shri R. P. Khare, Advocate to be the appellant's counsel and help him in pursuing this appeal. When this appeal came up for final hearing on 4/4/1990, no one appeared for the appellant and hence the Registrar was directed to appoint some other lawyer to argue this appeal. In compliance with the said order, one Shri G. K. Soni, Advocate, was appointed. It appears that the said Shri Soni, Advocate, accepted the brief, but made an application to this Court on 17/4/1990 that he would not be able to appear on 20/4/1990, the date already fixed. He was subsequently informed that the appeal will be listed on 2/7/1990 for final hearing. It is surprising that Shri Soni remained absent without any intimation. Apparently, therefore, the legal aid provided by the High Court to the appellant has not been able to reach him. Considering the fact that the appellant was sentenced only to five years R. I. and this Court takes almost that time to decide an appeal on merits, possibility of appellant being released on bail could not be ruled out. It is unfortunate that the Advocate appointed by this Court did not take any interest in the matter and did not move any such application.

( 3 ) WHEN the appeal came up for hearing on 19. 6. 1990; the appellant was un-represented. It then came to the notice of this Court that the Advocate appointed to represent appellants in jail is paid only Rs: 50/- as remuneration and expenses for appearing in the appeal in this Court from beginning to the end and because of this paltry sum, no lawyer is interested in working for such unfortunate appellants. This Court, therefore, issued notice to the Registrar of the High Court and the Advocate General of the State to show cause why the appellant should not be provided real and effective legal aid.

( 4 ) THE Registrar of the High Court submitted that though rules under section 304, Part-li, Cr. P. C. were framed in 1976, they do not contain anything about legal aid to convicts in the High Court. According to him, after the decision of Supreme Court. In M. H. Hoskot v. State of Maharashtra1 the Chief Justice of this Court made provision for providing legal aid in jail appeals in this Court and fixed Rs. 50/- per appeal on 16. 12. 1980. He also submitted that this amount includes the expenses. It was also stated that the Chief Justice has also directed, that Advocates upto 3 years of standing should be engaged. From the information made available by the Registrar, it is clear that the remuneration fixed in 1980 could not be increased because the High Court was not provided with sufficient fund by the State Government According to him, a proposal to enhance this amount to Rs. 150/ - per appeal was made in 1987 and finances requested from the State Government, but the same was not pursued this Court that during the last three years, the High Court had requested the State G

Click Here to Read the rest of this document