Patna High CourtCR. MISC./37719/2016dismissed

High Court Legal Services Committee, Patna High Court, Patna Through Its Secretary Shri Kishore Pra v. The State Of Bihar And ORS

2016-12-01Mr. Justice Vikash Jain,Mr. Justice Hemant Gupta3 pages

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.37719 of 2016 =========================================================== High Court Legal Services Committee, Patna High Court, Patna through its Secretary Shri Kishore Prasad, Joint Registrar (Judicial)-Cum-Secretary, Patna High Court Legal Services Committee, Patna.

.... .... Petitioner

Versus

1. The State of Bihar

2. The High Court of Judicature at Patna through the Registrar General, Patna High Court, Patna.

3. The Registrar General, Patna High Court, Patna.

4. The Secretary, General Administrative Department, Government of Bihar, Patna.......................................................Opposite Party 1st Set

5. Mr. Patanjali Rishi, Advocate, Patna High Court, Patna... Opposite Party 2nd Set

6. Sukhoo Mallah Son of Late Ramnath Mallah, resident of Village-Sabar, P.S.- Karamchat, District- Kaimur at Bhabhua.

.... .... Opposite Party 3rd Set =========================================================== Appearance :

For the Petitioner : Mr. Md. Anis Akhtar, Advocate For the Opposite Party: Mr. Nawal Kishore Prasad, APP =========================================================== CORAM: HONOURABLE THE ACTING CHIEF JUSTICE And HONOURABLE MR. JUSTICE VIKASH JAIN ORAL JUDGMENT (Per: HONOURABLE THE ACTING CHIEF JUSTICE) Date: 01-12-2016 Heard learned counsel for the petitioner and learned counsel for the State.

2. The present application has been filed by Patna High Court Legal Services Committee for modification of the order dated 26th of March, 2015 passed in Criminal Appeal (DB) No. 57 of 2009 by the Division Bench of this Court awarding a fee of Rs. 5000/- to the Amicus Curiae.

3. The argument of the learned counsel for the petitioner is

Patna High Court Cr.Misc. No.37719 of 2016 dt.01-12-2016 2/3 that under the Bihar State Legal Services Authority Regulation, 1998, the fee has been fixed; therefore, the High Court Legal Services Committee cannot pay more fee than what is fixed in the said Regulation.

4. We do not find any merit in the argument raised by learned counsel for the petitioner. Bihar State Legal Services Authority Regulation, 1998 regulates a fee payable to a counsel engaged by Patna High Court Legal Services Committee but not a fee ordered to be paid by the Court appointed Amicus. The fee of Rs. 5000/- awarded by the Court cannot be said to be unjust keeping in view the fact that the criminal appeal in which Amicus was appointed was against conviction of the accused under Section 302 of the Indian Penal Code.

5. The other orders relied upon by the petitioner were passed in Civil Review No. 452 of 2011 and Civil Review No. 453 of 2011 which are the cases wherein the fee was granted to an Amicus in the civil cases. Such orders will not be relevant in respect of fee paid for defending an accused convicted for the offence under Section 302 of the IPC. Still further, reliance on the orders dated 16th of September, 2016 passed in Criminal Miscellaneous No. 24032 of 2016 and Criminal Miscellaneous No. 25601 of 2016 is again not tenable. The Court has not interfered with the quantum of fee but observed that the

Patna High Court Cr.Misc. No.37719 of 2016 dt.01-12-2016 3/3 Patna High Court Legal Services Committee has no onus or duty to pay the fee to the Amicus.

6. We find that the Patna High Court Legal Service Committee is constituted to provide legal aid to the convicts who cannot represent themselves in view the mandate of the Constitution and the judgment of the Supreme Court to provide legal aid to the under trials and convicts. The Committee cannot be permitted to avoid making payment of fee. The Committee will be failing in its constitutional and legal duty, if this Court appointed Amicus is not to be paid fee by it. It cannot be said that the Patna High Court Legal Services Committee cannot and should not pay such fee as it is not just, fair and reasonable and in the interest of justice.

7. We do not find any reason to modify the order dated 26th of March, 2015 passed in Criminal Appeal (DB) No. 57 of 2009. The application is accordingly dismissed.

(Hemant Gupta, ACJ) (Vikash Jain, J) B.T/- AFR/NAFR NAFR CAV DATE N.A.

Uploading Date 03.12.2016 Transmission Date N.A.