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Judgment
Palok Basu, J.—These two matters have been connected and were heard along with Crl. Appeal no. 76 of 1982 Ram Avadh and Ors. v. State, and other appeals connected therewith and Government appeal no. 226 of 1982 State v. Jagannath Tripathi and others.
Sessions Trial No. 556 of 1974 connected with Sessions Trial No. 556-A of 1974 and Sessions Trial No. 136 of 1975 were heard and tried by the Additional District and Sessions Judge, Kanpur, which Court was created specially for trying the trials known as P.A.C. cases. The cases were committed to the Court of Sessions on 5-10-1974. The Trial Judge commenced the proceedings from 7-1-1976 onwards and framed charges. The arguments concluded before the learned trial Judge on 9-4-1981 on which day he passed the order disposing of an application by Shri K.K. Singh while the judgment was pronounced on 23-12-1981 whereby some accused were acquitted and many were convicted on various charges.
It appears that Sri Kamla Kant Singh, Advocate, had moved an application marked as Ex. 1063 Kha by the Trial Judge whereby it was prayed that Ram Avadh Singh and 103 others had faltered in clearing the professional dues and directions be issued commanding them to pay the same. By the detailed order dated 9-4-1981 the learned Trial Judge has directed that each of the accused should pay Rs. 300/- as additional fees and Rs. 100/- as expenses to Sri K.K. Singh. This order dated 9-4-1981 has been challenged by Triloki Nath Dubey and several others on various grounds in the aforesaid. Revision No. 168 of 1988.
Sri K.K. Singh, has, however, made Crl. Misc. Application no. 492S of 1981 challenging the inadequacy of the amount and has prayed that his entire fees be directed to be paid. However, by another application in Crl. Misc. Application No. 4925 of 1981 Sri K.K. Singh Advocate, has prayed that since he was appointed an advocate to look after indigent accused the State may be directed to pay his fees, remuneration and expenses, copy of which was served on the Government Advocate Sri K.C. Saxena on 5-9-1991. By this application it was prayed that the counsel''s fee in these appeals also be fixed as well as determined as claimed by him through various applications before the trial Judge and it be directed to be paid to him by the accused.
It is also noticed that initially the accused Sri Triloki Nath Dubey and others had filed a petition u/s 182 CrPC which was converted to Crl. Revision No. 168 of 1988 on the request of the accused.
Sri D.S. Misra, learned Counsel appearing on behalf of the several accused who are applicants in this revision has severely criticised the finding of the Trial Judge that "I, therefore, held that the learned Counsel is entitled to fees as declared by him above from the accused persons". He argues that neither the provisions contained in the CrPC nor in the Advocates'' Act could empower the trial Judge to make these observations and, therefore, his main argument was confined to the compete lack of jurisdiction on the part of the trial Court to pass the impugned order dated 9-4-1981.
Sri K.K. Singh, on the other hand has justified that part of the order by which some additional payment was directed to be made towards his fees by the accused and some further additional amount was said to be paid to him towards expenses but argued that his original application made before the trial Court claiming adequate fees and expenses should have been allowed.
From a persual of the order of the Trial Judge as also from the entire record of (he trial Court it appears that the Trial Judge had appointed another advocate at the State expense to look after the case of an accused Qaim Singh. There is no order passed by the Trial Judge which may indicate that Sri K.K. Singh was appointed as an advocate at State expense. On the contrary it is admitted position that Sri K.K. Singh had filed his vakalat-nama on behalf of 103 accused for whom he appeared before the Trial Judge and conducted the proceedings. Under the circumstances there cannot be any claim whatsoever of Mr. K.K. Singh to any amount from the State as having defended any indigent person before the trial Court. Therefore, it has to be held that Sri K.K. Singh is not entitled to any payment as State counsel or a counsel on State expenses from the State Government.
This decision has been necessitated for the added reason that by the impugned order dated 9-4-1981 the Trial Judge himself has interpreted that there was a subsisting contract between those accused and the applicant Sri K, K. Singh, Advocate as a result of which he had to perform his professional duties on the payment of his professional fees by the accused. Further finding is that the additional payment which sought to have been made by the accused towards the fees and the expenses as agreed under the contract had not been paid to him. In fact, the trial Judge was the best authority to know about his own record and had there been any order by which Sri K.K. Singh was appointed as a counsel for any indigent accused, the trial judge would certainly have made such an order as would have entitled him to receive appropriate payment from the State Government, A finding going to uphold an individual contract between an accused and an advocate, will leave no room for claim of that advocate to be made from the State Exchequer any amount as an advocate for indigent accused, particularly when there is no finding to that effect.
There is enough force in the argument of Sri D.S. Misra that neither in Criminal Procedure Code nor in the Advocate''s Act one gets any provision which may have empowered a trial Court of fix terms of professional contract and direct its payment by the accused to the counsel. The claim, if any, of the said counsel may if legally made in the appropriate Court, and if the said Court finds legitimate basis, evidence and proof of such a contract, such a counsel can always be suitably compensated, by an appropriate decree. However, the impugned order dated 9-4-1981 directing that the learned Counsel is entitled to fees as declared by him from the accused persons is without jurisdiction and has to be set aside.
Sri K.K. Singh''s application in this Court, however, is not confined to his claim as a lawyer of indigent accused in the trial Court but is more based on his claim that he appeared as a lawyer on State expense on behalf of the indigent accused in these appeals and, therefore, the State should be directed to make payments on the same rates as claimed by him during the trials Court proceedings and it should also he asked to make good the expenses put in by him.
Sri K.C. Saxena, learned Additional Government Advocate has vehemently opposed this prayer of Sri K.K. Singh on the ground that there is no specific order by either the Chief Justice or any other Judge of this Court appointing Sri K.K. Singh as an advocate on State expense to defend any indigent accused in any of the appeal filed by him. On the contrary, it was emphasised that Sri K.K. Singh has filed vakalatnma even in cases which were filed by other counsel and he must be taken to be a counsel engaged by private negotiations by all the accused since he had voluntarily filed these appeals and, therefore, there is no question of making any payment to him by the State Government. It may be added here that Sri Saxena drew the attention of the Court to the fact that no enquiry as envisaged by the rules framed under the Uttar Pradesh Rajya Qanooni Sahaila Aur Pramarsh Prakirya Yojna 1981 was conducted regarding any accused, and therefore, this Court should refrain from directing any payment to be made to Sri K.K. Singh at State expense. It was emphasised that unless the procedure laid down under these rules is fully gone into, orders of payments to an advocate on State expense cannot be made.
However, looking into the entire facts and circumstances and the various orders passed by this Court from time to time on one or the other application on record, it has to be held that Sri K.K. Singh has appeared in this Court as an advocate on behalf of the accused who may be held to be indigent.
The first application that was moved by Sri K.K. Singh before the Hon''ble the Chief Justice was directed to be presented before the Hon''ble Judge then dealing with legal aid matter i.e. Hon. T.S. Misra, J. on 4-11-1982. The Hon''ble Judge-in-charge of legal aid passed the following order on the said application :
Appellants in Criminal Appeal No. 76 of 1982 (Allahabad) have moved this application seeking free legal aid. It is necessary to know with respect to each Appellant as to whether he is indigent or he is in a position to bear any expenses pertaining to the case. Each Appellant shall, therefore, file an affidavit...The learned Counsel Sri K.K. Singh who has appeared on behalf of the Appellants today before me submits that two months'' time may be allowed to the Appellants to file the affidavit. The Appellants may do so within two months.
List this application again before me on 7-2-1983
It appears that this application ultimately went before Hon. T.S.M.J. on 28- 4-1983 when the following order was passed :
Criminal appeal no. 76 of 1982 has been filed by four Appellants Ram Avadh Singh, Subhnath Tripathi, Tej Bahadur Singh and Ram Lakhan Misra. These Appellants have filed their own affidavits to substantiate that they are indigent persons having annual income less than Rs. 5000/- from all sources. They have prayed that they may be given legal aid at the State expense and the Government may be directed to bear the costs of paper book and to pay counsel''s fee which may be deemed fit and proper in the circumstances of the appeal. Keeping in view the fact that the annual income of each of the aforesaid Appellants is less than Rs. 5000/-from all sources as is evident from their affidavits and the annexures thereto and also of the fact that the record of the case out of which this appeal has arisen runs in several thousand pages, I direct that the paper book be prepared at the expense of the State. The question of providing counsel to the Appellants sit the State expense and on what fee shall be decided on the next date. Fix it now on 15-7-1983 as prayed.
List it on 15-7-83 along with criminal appeal nos. 216 of 1982 and 125 of 1982.
If necessary, send back this file to Allahabad for preparation of Paper book.
This order shall be communicated to the Registrar High Court at Allahabad by the Additional Registrar of this Bench.
Sd. T.S.M. 28-4-83.
It appears that in the meantime the paper books were prepared at the State expense by the High Court office and the appeals were got ready and several orders were passed by the learned Single Judges dealing with those appeals individually that all of them should be taken up for hearing together at the earliest.
It was argued by Sri K.K. Singh that necessary affidavits were also filed by the Appellants in Criminal Appeal no. 76 of 1982 as per the directions of Hon. Judge in-charge of legal aid them. It was emphasised that no counter affidavit was filed on behalf of the State.
On 30-4-1984 the said application in Criminal Appeal no. 76 of 1982 ultimately came up for decision before Hon. R C.D. Sharma, the Hon''ble Judge in-charge of legal aid matters then. On 30-4-1984 the said application was disposed of and the relevant extract of the said order is quoted below for ready reference :
It appears that Criminal appeal no. 76 of 1982 has been field byRam Awadh Singh and three others...Affidavits were filed to indicate that they possessed practically no means ''and their income is well within Rs. 5000/- per annum from all sources. They prayed to be defended at Government expenses by providing legal aid and assistance of a counsel....Hon. T.S.M.J. as he then was, directed that the paper book be prepared at Government expense......Looking to the volume of the record and also the amount of labour that will be required to be put in for arguing the case on behalf of the Appellants but at the same time also looking to the fact that Sri K.K. Singh, learned Counsel who had defended these Appellants in the trial Court, is sought to be engaged by the Appellants in the appeal as well, for Sri K.K. Singh the labour involving would be comparatively less, it is felt that a consolidated fee of Rs 5000/- may be ordered to be paid from the funds of the disposal of the Court. If, however, it is felt at a later stage that the hearing of the case continues for an unusually large number of days and there is justification for sending (sic) any further fee, the matter can be considered at that stage". "I would also like to obtain the report of the Advocate General who either himself or after consulting Government Advocate, may, looking to the nature of the case and the labour involved, suggest if any further fee deserves . to be paid to the learned Counsel... While making this recommendation the learned Advocate General will naturally take into consideration the standing of the learned Counsel and the fact that he had also appeared for these Appellants in the trial Court and consequently the labour involved would not be so much for him as for any either counsel newly engaged.
In view of the three orders quoted above, there does not appear to be any strength in the argument of Sri Saxena that Sri K.K. Singh was not appointed as an advocate on State expense for the indigent accused Appellants in Criminal appeal no. 76 of 1982.
Coming now to the question as to how the fees payable is to be determined, it may be noted that Hon. R.C.D. -Sharma, J. has held that a sum of RS. 50)0/- only is an appropriate consolidated fees. This, to our mind, appears to be much two inadequate.
It was rightly pointed out by Sri K.K. Singh that in these appeals, at various occasions he has made several applications including preparation of charts, citing individual cases of accused detailing the prosecution evidence category wise making different charts about dead and injured, company wise break up of accused, deceased constables and injured etc. of rulings, the list of various orders passed from time to time by the trial Court etc. He also emphasised that in order to get the matter relating to indigent accused decided he went to Lucknow on several dates of his own accord. He also emphasised that in order to get the paper books prepared he had spent his own time, went to Press, went to the Office and went to the Registrar of this Court on times out of number sacrificing his other J professional work. Considering all these aspects of the matter Rs. 5000/- is quantified to be paid as expenses by the State to Sri K.K. Singh in all these appeals.
It may be noted that these connected appeals went on in this Court for 68 hearing days. During hearing all other advocates were duly accommodated so as to enable them to attend to their professional work but by and large, Sri K. K Singh was ever present in the Court. It must be recorded here that but for the help of Sri K.K. Singh who had the advantage of appearing in the trial Court, it would have taken more time for this Court to fact the the record particularly the large number of exhibits filed from both sides. Taking info consideration all the facts and circum-stances, the professional ability of Sri K.K. Singh, the general fees payable in such longish matters, it should be thought reasonable that the counsel is paid Rs. 345/- a day for discharging his professional duty. It is true that on some occasions Sri K.K. Singh had gone to Lucknow in connection with these legal matters and also in view of fact that he has appeared on some dates before some other Bench when these appeals were listed but nothing could be completed in any other Bench, however, for all these incidences, a sum of Rs. 540/- is quantified to be payable to Shri K.K. Singh. Therefore, the total amount payable to Sri K.K. Singh, would be Rs. 5000/- plus Rs. 23460/. plus Rs. 1540/- equaling to Rs. 30,000/
During the course of arguments Sri K.K. Singh has relied upon various decisions touching the question of how the fees of an advocate is determined and has also cited some passages from Mahatma Gandhi''s Autobiography and some other similar literary work. It is, however, not necessary to refer to them because while quantifying the amount of expenses the reasonable fees of an advocate in such longish matters has been taken due note of.
It is hereby directed that Sri K.K. Singh shall be ''paid a total sum of Rs. 30000/- towards the entire fees and expenses for having appeared as counsel for the four indigent Appellants in Criminal appeal no. 76 of 1982.
The result, therefore, is that Cri. Misc. Application No. 4925 of 1981 moved by Sri K.K. Singh is allowed and Criminal Revision No. 4168 of 1988 is also allowed in the aforesaid terms.