Martin @ Tamilarasan v. The State Rep. By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 20.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR and THE HONOURABLE MR.JUSTICE SUNDER MOHAN W.P.Nos.28237 & 31519 of 2023 and W.M.P.No.31154 of 2023 in WP No.31519 of 2023 WP No.28237 of 2023
1. D.Martin @ Tamilarasan
2. R.Gurusamy 3.M.Suresh
4. A.Madhaiyan
5. A.Kumar
6. M.Raja 7.M.Durai
8. K.Palani
9. P.Krishnan 10.K.Ravi 11.A.Sathishkumar
12. D.Sakthivel 13.V.Sekar 14.I.Muthu @ Pachamuthu
15. D.Thangapandian
16. K.Vinayam
17. K.Raja
18. K.Rita Mary
19. I.Amalorpavam
20. A.Balan
21. V.Vijaya
22. K. Theivanai @ Sathya
23. G. Boothippatti Ramachandrana
24. V.Sundaramoorthy
25. D.Rahini @ Bharathi
26. S.Padma ... Petitioners 1/18
Vs.
1. The State Rep by Deputy Superintendent of Police "Q Branch CID", Dharmapuri.
2. The Secretary, State Legal Services Authority, High Court Campus, Chennai - 600 104 ... Respondents Prayer : Petition filed under Article 226 of the Constitution of India in the nature of Writ of Mandamus, directing the trial Court-Special Court under POTA Act at Poonamallee, Chennai Special S.C.No.3 of 2022 to implement the order in C.A.No.346/2007 dated 10.12.2008 on the file of High Court for the within order their defence in consultation with my lawyer appointed by the legal aid as directed by the Division Bench in C.A.No.346 of 2007 dated 10.12.2008, to secure ends of justice.
For Petitioners : Mr.R.Sankarasubbu For Respondents : Mr.E.Raj Thilak (for R2) Additional Public Prosecutor Mr.E.V.Chandru @ E.Chandrasekaran (for R1) WP No.31519 of 2023 S.Duraisingavel ... Petitioner Vs.
1. The Secretary, State Legal Services Authority, High Court Campus, Chennai - 600 104
2. The State Rep by 2/18
Deputy Superintendent of Police "Q Branch CID", Dharmapuri.
... Respondents Prayer : Petition filed under Article 226 of the Constitution of India in the nature of Writ of Mandamus, to direct the trial Court i.e., the learned Special Court under POTA Act at Poonamallee, Chennai in Special S.C.No.3 of 2022 to facilitate the petitioner to proceed with the trial after formulating our defence in consultation with our lawyer appointed by the 1st respondent in our choice as directed by the order passed by this Honourable Court in W.P.No.14648 of 2023 dated 25.05.2023 dated 25.05.2023 to secure ends of justice. For Petitioner : Mr.R.Sankarasubbu For Respondents : Mr.E.V.Chandru @ E.Chandrasekaran (for R1) Mr.E.Raj Thilak (for R2) Additional Public Prosecutor COMMON ORDER [Order of the Court was made by SUNDER MOHAN, J.,] The above writ petitions have been filed by the accused, who are facing trial in Spl.S.C.No.3 of 2022 pending on the file of the Special Court under POTA Act at Poonamallee stating that they have no means to engage a lawyer of their choice and therefore, the Special Court is bound to appoint a lawyer to defend their case.
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2. The learned counsel for the petitioners also submitted that under similar circumstances, in Crl.A.No.346 of 2007 by the order dated 10.12.2008, this Court had appointed counsel to defend the accused at the expenses of the State, taking into consideration Sections 303 and 304 of the Cr.P.C.
3. The learned counsel also pointed out to an order passed by this Court in WP No.14648 of 2023 dated 25.05.2023 filed by one of the coaccused (A22), wherein this Court had appointed him viz., Mr.R.Sankarasubbu, as legal aid counsel for the petitioner therein (Petitioner in WP No.31519 of 2022).
4. W.P.No.31519 of 2022 has been filed by the petitioner (A22), seeking a direction to the trial Court to implement the order passed by this Court dated 25.05.2023 in WP.No.14648 of 2023.
5. The learned Additional Public Prosecutor appearing for the respondent-Police submitted that it is a fact that this Court in Crl.A.No.346 of 2007 had appointed the counsels, as requested by the accused and had also referred to G.O.(D).No.480, Home (Courts-VI) dated 19.04.2007 for fixing the fee to the legal aid counsels. On instructions, he further submitted that all the 4/18
counsels who have been named in paragraph No.6 of the affidavit filed in WP No.28237 of 2023, have filed vakalath and are representing the accused so far.
6. We have considered the submissions of the learned counsel for the petitioners and the learned Additional Public Prosecutor appearing for the respondent-Police.
7. All the accused claim that they have no means to appoint a counsel of their choice to defend their case. In paragraph No.6 of the affidavit, they have tabulated the names of the counsels at the choice of each of the accused. They have also stated that the counsels have agreed to represent them and some of them have filed their memo of appearance/Vakalath also. Paragraph No.6 of the affidavit is extracted for better appreciation. Sl.
No.
Name of the Accused with Rank Name of the State Brief Advocate and his Address Name of the Junior/ Associate Advocate and his address Martin @ Tamilarasan R.Sankarasubbu S.Jeevanantham (A1) (KAR.258/1980) (Ms.399/2015) No.48, Church Street, No.22/16, Mandhaveli 5th Street, Madhavaram, Thangam Colony, Anna Nagar, Chennai - 40.
Chennai - 600 060.
Gurusamy (A3) R.Sankarasubbu S.Jeevanantham (KAR.258/1980) (Ms.399/2015) No.48, Church Street, No.22/16, Mandhaveli 5/18
Sl.
No.
Name of the Accused with Rank Name of the State Brief Advocate and his Address Name of the Junior/ Associate Advocate and his address 5th Street, Madhavaram, Thangam Colony, Anna Nagar, Chennai - 40.
Chennai - 600 060.
Suresh (A4) B.M.Subash, S.Mathivanan, (Ms.2059/2014) (Ms.2600/2017) No.17, 1st Cross Street, No.172, ThambuChetty Street, Thirumullaivayol, Chennai - 600 001 Chennai - 600 062 Mathaiyan (A5) G.Pavendhan P.Mohanbabu (KAR.711/1999) (Ms.5082/2022) Romm No.21, 2nd Floor No.88, Dr.Ambetkar College Kondi Street, Road, Pattalam, Chennai - 600 001.
Perambur Barracks Road Chennai - 600 012 Kumar @ Palanisamy (A6) S.Parthasarathi E.Sasirekadevi (Ms.169/2005) (Ms.3660/2010) No.150, 1st Floor, No.150, 1st Floor, LingiChetty Street, LinghiChetty Street, Chennai - 600 001 Chennai - 600 001 Raja (A7) P.K.Ilavarasan M.Checastna (Ms.236/2001) (Ms.2040/2016) No.5, 4th Floor, No.5, 4th Floor, Sunkuraman Street, Sunkaraman Street, Chennai - 600 001.
Chennai - 600 001.
Durai B.Mohan G.Manoharan, (A8) (Ms.354/1979), (Ms.1473/2012), No.122, Gurunathan Street, No.59 B, First Floor, Arul Nagar 2nd Street, Madhavaram Milk Colony, Bhavani, Erode District Chennai - 600 051 Palani @ Manickam (A9) R.Sankarasubbu S.Mathivanan, (KAR.258/1980) Ms.2600/2017) 6/18
Sl.
No.
Name of the Accused with Rank Name of the State Brief Advocate and his Address Name of the Junior/ Associate Advocate and his address No.17, 1st Cross Street, No.48, Church Street, Thangam Colony, Thirumullaivayol, Anna Nagar, Chennai - 40.
Chennai - 600 062 Krishnan (A10) K.Natarajan K.Deepakshi (Ms.1587/2011) (Ms.6496/2021), 138, Thambu Street, 138, Thambu Street, Chennai - 600 001 Chennai - 600 001.
Ravi (A11) S.P.Pavanan A.Shiek Abdul Ajez, (Ms.1684/2014) (Ms.1155/2017), No.2/448, Kamalam Nagar No.15, Velan Nagar, 1st Main Road, Thiruneermalai Road, Nanmangalam, Kundrathur, Chennai - 600 129 Chennai - 600 069 Sathishkumar (A12) A.Kamarudeen A.Thanigainathan (Ms.351/2008) (Ms.4183/2012) No.25 G, 1st Floor, No.B-9, 1st Floor, B-Block, No.166 Thambu Street, Geethanjali Apartment, Sasthiri Road, Chennai - 600 001.
Thillai Nagar, Trichy.
Sakthivel (A13) P.Pugalendhi A.O.Mohamed Sharbudeen (Ms.255/2001) (Ms.2933/2015) No.5, 4th Floor, No.5, 4th Floor, Sunkuraman Street, Sunkuraman Street, Chennai - 600 001 Chennai - 600 001.
Sekar @ Basker N.Panchksaramurthy B.Saravanan (A14) (Ms.377/1966) (Ms.389/2008) No.3, 1st Street, Seetha Nagar, Nungambakkam, Chennai - 600 034.
No.150, 1st Floor, LinghiChetty Street, Chennai - 600 001.
Muthu @ Pechaimuthu D.Mario Johnson R.Chandrasekar, 7/18
Sl.
No.
Name of the Accused with Rank Name of the State Brief Advocate and his Address Name of the Junior/ Associate Advocate and his address (A15) (Ms.338/1998), (Ms.2161/2018) 138, 2nd Floor, MC - 06, Catholic Centre, No.108 Armenian St, Thambu Street, Chennai - 600 001 Chennai - 600 001.
Thangapandian (A16) S.Jimraj Milton B.Saravanan (Ms.904/2007) (Ms.389/2008) No.150, 1st Floor, No.150, 1st Floor, Linghi Chetty Street, LinghiChetty Street, Chennai - 600 001 Chennai - 600 001 Vinayagam B.Mohan G.Manoharan, No.150, 1st Floor, (A17) (Ms.354/1979), No.122, Gurunathan St, LinghiChetty Street, Bhavani, Erode District.
Chennai - 600 001.
Raja (A18) A.Anandaraja G.Ragunathan (Ms.727/2010) (Ms.1501/2015) 1/129C, Ramalingam Street Eravur Via, Melur Post, Kallakurichi Taluk & District - 608 201.
Adhikaripatti, Udayapatti Post, Salem - 636 140 Rita Mary (A19) P.Pugalendhi A.O.Mohamed Sharbudeen, (Ms.255/2001) (Ms.2933/2015) No.5, 4th Floor, No.5, 4th Floor, Sunkuraman Street, Sunkuraman Street, Chennai - 600 001 Chennai - 600 001.
Amalorpovam S.Sengodi, V.Shakila (A20) (Ms.335/2004), (Ms.2691/2018) No.132/277, 1st Floor, No.26/1 CPWD Quarts Thambu Street, KamarajSalai, K.K.Nagar, Chennai - 600 001 Chennai - 600 078 Balan Dr.S.Manoharan K.Akshaya 8/18
Sl.
No.
Name of the Accused with Rank Name of the State Brief Advocate and his Address Name of the Junior/ Associate Advocate and his address (A21) (Ms.1264/2005), (Ms.6454/2021) 138, Thambu Street, 138, Thambu Street, Chennai - 600 001 Chennai - 600 001 Vijaya M.A.Mumtaj Surya M.K.Sathish Kumar, (A23) (Ms.1974/2009 (Ms.275/2020) No.40, 3rd Street, No.25, RettamalaiSrinivasan Kamaraj Nagar, Avadi, Street, Chennai - 600 071.
Tiruppathur - 635 601 Sathya (A24) N.Latha, D.Girija M/s. 1521/1999 (Ms.3116/2010) No.9, Law Chambers, No.20, Anna Street, High Court Buildings, Kottamedu Post, Chennai - 600 104.
Avadi Taluk, Thiruvallur District Bothapatti @ Ramachandran P.PaulPandian S.Mathivanan (Ms.251/1979) (Ms.2600/2017) (A25) 17, 1st Cross Street, 17, 1st Cross Street, Santhipuram, Santhipuram, Thirumullaivayil, Thirumullaivayil, Chennai - 600 062 Chennai - 600 062 Sundaramurthy (A26) R.Sankarasubbu K.Kesavan (KAR.258/1980) (Ms.1266/2004) No.48, Church Street, C.18, TNPHC Ltd, Police Quarters, Velecherry, Chennai - 600 042.
Thangam Colony, Anna Nagar, Chennai - 40.
Rahini @ Bharathi (A27) G.Pavendhan P.Mohanbabu (KAR.711/1999) (Ms.5082/2022) Room No.21, 2nd Floor No.88, Dr.Ambetkar College Road, Pattalam, 9/18
Sl.
No.
Name of the Accused with Rank Name of the State Brief Advocate and his Address Name of the Junior/ Associate Advocate and his address Kondi Street, Perambur Barracks Road, Chennai - 600 001.
Chennai - 600 012 Padma (A30) A.Stephen B.Saravanan (Ms.189/1985), (Ms.389/2008) 205, 46th Street, No.150, 1st Floor, TVS Colony, LinghiChetty Street, Anna Nagar West Extn, Chennai - 600 001.
Chennai - 600 040
8. The grievance of the petitioners appears to be that unless the Special Court recognises the aforesaid lawyers as Counsels appointed by the State, the learned counsels would not get the fee stipulated in the Government order extracted in the order passed by this Court in Crl.A.No.346 of 2007.
9. To a specific query as to whether the accused have filed an application for appointing legal aid counsel, the learned counsel would submit that they had filed an application, but were unable to produce the copy of the said application.
10. This Court in the order dated 10.12.2008 made in Crl.A.No.346 of 2007 after referring to the provisions of Sections 303 and 304 of Cr.P.C., had passed the following orders:
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"15. In Criminal Appeal No.346 of 2007, the appellants, 27 in number, have approached the Special Court under Section 304 of the Code of Criminal Procedure in Crl.M.P.No.102 of 2007 for appointment of pleaders through legal aid to defend them in their case and the said petition was dismissed by order dated 24.3.2007. As we have found that irrespective of whether an application is filed or not, in the event the Court is satisfied that the accused is entitled to defend the case through the pleader of his choice and at the expense of the State in the event he is able to satisfy the Court that in the circumstances of the case a pleader of special expertise is required and he has no means to pay him, the Court in exercise of suo motu power under Section 304 could appoint such pleader by fixing the fee at the cost of the State. In the event the Court had not done so, this Court would certainly be competent, both to make such appointment and to direct the payment of fee from the State fund. Hence for the above reasons, both the writ petitions and the criminal appeal should succeed.
16. This leads us to the next question as to the quantum of fee to which each of the pleaders are entitled to. The Government in G.O.(D) No.480, Home (Courts-VI) Department dated 19.4.2007 issued directions fixing the following fee to the State Brief Advocates and to the Junior Advocate/Associate Advocate/Advocate appearing on behalf of State Brief Advocates:- Fees to State Brief Advocates Bar experience of the Advocate Fees for effective hearing (above 3 hours) Fees for less than 3 hours (50% of the amount indicated in Col.1 & 2) Outstation Advocate (1) Local Advocate (3/5 of the amount indicated in Col.1) Outstation Advocate (3) Local Advocate (3/5 of the amount indicated in Col.3) (4) (2) Advocate with 20 years or more experience Rs.2,500/- Rs.1,500/- Rs.1,250/- Rs.750/- Advocate with over 10 years or more experience Rs.1,875/- Rs.1,125/- Rs.940/- Rs.564/- 11/18
but less than 20 years experience Advocate with over 5 years experience or more but less than 10 years experience Rs.1,250/- Rs.750/- Rs.625/- Rs.375/- Advocate with less than 5 years experience Rs.625/- Rs.375/- Rs.315/- Rs.200/- Junior Advocate/Associate Advocate/Advocate appearing on behalf of State Brief Advocates Fees for effective hearing (above 3 hours) Fees for less than 3 hours (50% of the amount indicated in Col.1 & 2) Outstation Advocate Local Advocate Outstation Local Advocate (3/5 of the amount Advocate (3/5 of the amount indicated in Col.1) indicated in Col.3) (1) (2) (3) (4) Rs.1,000/- Rs.600/- Rs.500/- Rs.300/-
17. The above fee is directed to be paid to the State Brief Advocates and to the Junior Advocate/Associate Advocate/Advocate appearing on behalf of State Brief Advocates who defended the accused in the bomb blast cases at Coimbatore. The said fee was fixed on the basis of the recommendation of the High Court in the absence of any rules framed for that purpose in terms of subsection (2) of Section 304. The above fee includes the transport, accommodation, etc. However, the trial in question was conducted only in Poonamallee and therefore, the pleaders who defended the accused need not spend much on transport and accommodation for that matter, as they could come back after the completion of the trial. Therefore, in our opinion, the two writ petitioners and the counsel for the accused in the criminal appeal are entitled to Rs.
1,750/- for each day's of their effective participation, excluding adjournments, in the trial. The above fee is irrespective of the number of accused they represent.
participation in the trial, excluding adjournments, and pay the same within a period of two months from the date of receipt of a copy of this judgment. It is seen from the records that this Court by order dated 29.4.2005 had directed the respondents to pay an interim payment of Rs.25,000/- and Rs.30,000/- respectively. Any amount of remuneration paid to the pleaders pursuant to the interim directions of this Court shall be adjusted in the actual quantum of amount arrived by the respondent in terms of this judgment. Accordingly, the writ petitions are allowed. Consequently, W.P.M.P.No.15231 & 15232 of 2005 are closed. No costs. Likewise, the judgment and order in Crl.M.P.No.102 of 2007 passed by the learned Special Judge for POTA offences, Poonamallee is set aside and the criminal appeal is also allowed.
11. We also find that in W.P.No.14648 of 2023, this Court by order dated 25.05.2023 had already considered the request of A22 (Petitioner in WP No.31519 of 2023) and passed an order appointing Mr.Sankarasubbu, as legal aid counsel. It is the case of the petitioner in WP No.31519 of 2023 that even in his case, the trial Court had not passed any order recognising the counsel appointed by this Court as legal aid counsel, to enable him to get fee from the State Government.
12. In view of the constitutional and the statutory right of the accused to have counsels to defend them, we are of the view that the petitioners are at liberty to file an application before the trial Court under Section 304 of Cr.P.C., for appointment of pleaders through legal aid immediately. The trial Court shall consider the said application on merits within a week from the date of 13/18
filing of such application, taking into consideration the order passed by this Court in Crl.A.No.346 of 2007 dated 10.12.2008 and W.P.No.14648 of 2023 dated 25.05.2023.
13. As regards the petitioners in WP No.28237 of 2023, the trial Court shall forthwith appoint the counsel suggested by this Court in the order so that the learned counsels are paid fees in terms of the Government Order which is extracted in paragraph No.16 of the order in Crl.A.No.346 of 2007.
14. Admittedly, all the accused are represented by learned counsels. Hence, the trial shall not be stalled for the purpose of deciding any application that may be filed by the accused under Section 304 of Cr.P.C. The trial shall proceed on a day-to-day basis as directed by this Court vide order dated 25.05.2023 in WP No.14648 of 2023.
15. With the above observations, the writ petitions are ordered accordingly. Consequently, the connected writ miscellaneous petition is closed. [S.S.S.R., J.] [S.M, J.] 20.11.2023 Internet : Yes 14/18
Speaking/Non-Speaking Order Issue order copy by 22.11.2023 ars/dk 15/18
To
1. The State Rep by Deputy Superintendent of Police "Q Branch CID", Dharmapuri.
2. The Secretary, State Legal Services Authority, High Court Campus, Chennai - 600 104 16/18
S.S.SUNDAR,J.
and SUNDER MOHAN,J.
ars/dk W.P.Nos.28237 & 31519 of 2023 and W.M.P.No.31154 of 2023 in WP No.31519 of 2023 (2/2) 17/18
20.11.2023 18/18