JUDGMENT P. S. Mishra, J. - Two respondents Jagmohan Singh Toni and Dalip Singh have filed two separate applications but similar in contents praying that this Court may modify its order of stay dated 8.9.1989 to permit the Sessions Court, Delhi to dispose of and deal with Misc. Applications pending before it and to direct the State of Bihar to pay a sum of Rs 10,000/- per day as counsel's fee besides expenses to enable them to be represented by a counsel of their choice. 2. The petitioner has filed a rejoinder stating that any person accused of an offence before a criminal court or against whom proceedings are instituted under the Code of Criminal Procedure may have the right to defend himself by a lawyer of his choice but the court does not come into the picture to give a right of selecting a lawyer of the choice of an accused except under section 304 of the Code of Criminal Procedure, 1973 and that there is no justification, legal or otherwise, for the modification of the impugned order of stay particularly when the case is being heard for final disposal. 3. Respondent no. 3, however, has made no such application. A telegram dated 3rd October. 1984, stating that time fixed for hearing the application was too short to make arrangement for appearance and seeking adjournment, however, has been received and kept at Flag-Y. 4. Our constitutional system promotes equal justice Social, Economic and Political is manifest by some Articles including one incorporated in the shape of Article 39-A in part IV of the Constitution of India. This when introduced by the Constitution (42nd Amendment) Act, 1976 came as a Directive Principle of State policy relating to free legal aid stating: "Equal justice and free legal aid—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, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities." This has been introduced with the obvious and avowed object that the operation of the legal system promotes equal justice. Therefore, free legal aid to those who are in need of such aid and who can not afford the cost of litigation whether on account of economic backwardness or other reasons is a constitutional promise. The object is to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities Concept of equal justice has been manifest in quite a few Articles of Constitution of India including one in Article 21 of the Constitution which states. "No person shall be deprived of his life or personal liberty except according to procedure established by law. And in Article 14 which states: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Thus the equal protection of the laws and equality before the law, besides action according to procedure established by law, to affect any person's life or personal liberty, are constitutional guarantees. To achieve this object the State is obliged to make laws by suitable legislation or frame schemes but in no case can act otherwise which may not secure equal opportunity to some one who for securing justice may not get necessary funds and if funds are available, is otherwise not able to avail the opportunity due to other disabilities. Our laws are for the said reason undergone some changes. Enactments in sections 303 and 304 of the Code of Criminal Procedure 1973 are steps in the said direction and achieve to some extent that equal opportunity is not denied on account of economic or other disabilities. They together provide that any person accused of an offence before the criminal court or against whom proceedings are instituted under the Code of Criminal Procedure may have the right to defend himself by a lawyer of his choice and where in trial before the court of sessions the accused is not represented by a lawyer and where it appears to the court that the accused has not sufficient means to engage a lawyer, the court shall assign a lawyer for his defence at the expense of the State. Thus any person accused of an offence may as of right be defended by a lawyer of his choice and where in a trial before the Court of Sessions, the accused is not represented by a lawyer, the court shall assign a lawyer for his defence at the expense of the State. Sub-section 2 of section 304 states. "The High Court may, with the previous approval of the State Government, make rules providing for- (a) the mode of selecting pleaders for defence under sub-section (1); (b) the facilities to be allowed to such pleaders by the Court; (c) the fees payable to such pleaders by the Government and generally for carrying out the purpose of sub-section (1)." The Advocates Act, 1961 has been suitably amended by Act 60, 1973 with effect from 31.1.1974 and section 9-A has been introduced to the effect: "A Bar Council may constitute one or more legal aid committees each of which shall consist of such number of members, not exceeding nine but not less than five, as may be prescribed. (2) The qualifications, the method of selection and the term of office of the members of a legal aid committee shall be such as may be prescribed." This Court with the previous approval of the State Government has made rules known as Bihar Legal Aid Rules, 1974. These rules have, however, defined "a court" to mean the court of sessions before which the trial is pending and applied to trials before the court of session only. Rules state that the Sessions Judge shall prepare and maintain a panel of adequate number of pleaders who have practised as such for not less than seven years and who in the opinion of the Sessions Judge are fit to be assigned for the defence of an accused in a sessions trial. By notification dated 24.2.1981 legal aid rules have been extended to accused facing trial in the courts of Chief Judicial Magistrate, Addl. Chief Judicial Magistrate and any other courts of Judicial Magistrates. The legislature of the State has also enacted a law known as Bihar State Weaker Section Legal Aid Act, 1983. This Act, however, applies to such persons only who are residents of the, State of Bihar and who do not have annual income more than Rs. Chief Judicial Magistrate and any other courts of Judicial Magistrates. The legislature of the State has also enacted a law known as Bihar State Weaker Section Legal Aid Act, 1983. This Act, however, applies to such persons only who are residents of the, State of Bihar and who do not have annual income more than Rs. 6,000/- except in cases where persons seeking legal aid belong to scheduled caste, scheduled tribe, economically backward, landless labourers and disabled, in whose case income shall not be a consideration. Rules framed under section 49 (1) (c) of the Advocates Act also contain a provision in Rule 46 thereof: "Every Advocate shall in the practice of the profession of law bear in mind that anyone genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate's economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an Advocate owes to society." The Court, however, has been informed that the State Bar Council has not until now acted to implement section 9(A) of the Advocates Act. 5. There are, however, some voluntary association of Advocates of this Court and the State of Bihar who have been extending legal aid as and when possible. A Bench of the Supreme Court in M. H. Hoskot Vs. the State of Maharashtra, (A.I.R. 1978 S.C. 1548) is the authority which bas taken notice of the expression "procedure established by law" in Article 21 of the Constitution and has said: "Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is largely, the history of procedural safeguards and right to a hearing has a human right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights, observance of fundamental rights is not regarded as good politics and their transgression 88 bad politics. To sum up procedure in Article 21 means fair, not formal procedure. 'Law' is reasonable law, not any enacted piece." This judgment has also taken notice of the ingredients of fair procedure and has said particularly about the provision of legal services to a prisoner who is indigent or otherwise disabled from securing legal assistance, where the ends of justice call for such services. 'Law' is reasonable law, not any enacted piece." This judgment has also taken notice of the ingredients of fair procedure and has said particularly about the provision of legal services to a prisoner who is indigent or otherwise disabled from securing legal assistance, where the ends of justice call for such services. In the language of the Supreme Court: "Every step that makes the right of appeal fruitful is obligatory and every action or inaction which stultifies it is unfair and, ergo, unconstitutional......Pertinent to the point before us are two requirements : (i) service of a copy of the judgment to the prisoner in time to file an appeal and (ii) provision of free legal services to a prisoner who is indigent or otherwise disabled from securing legal assistance where the ends of justice call for such service. Both these are State responsibilities under Article 21. Where the procedural law provides for further appeals what we have said regarding first appeals will similarly apply." Speaking particularly about the legal aid the court has said- "The other ingredients of fair procedure to a prisoner, who has to seek his liberation through the court process is lawyer's services, Judicial justice, with procedure. I intricacies, legal submissions and critical examination of evidence, leans upon professional expertise, and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature, moulded by Anglo-American models and our judicial process, engineered be kindred legal technology, compel the collaboration of lawyer-power for steering the wheels of equal justice under the law. Free legal services to the needy is part of the English criminal justice system. And the American jurist Prof. Vance of Yale, sounded sense for India too when he said : (1) "What does it profit a poor and ignorant man that he is equal to his strong antagonist before the law if there is no one to inform him what the law is ? Or that the courts are open to him on the same terms as to all other persons when he has not the wherewithal to pay the admission fee ?" 6. Extensively quoting from British and American authorities the Supreme Court has observed : "Prisoners, men and women regardless of means, are a peculiarly handicapped class. The morbid cell which confines them walls them off from the world outside. Extensively quoting from British and American authorities the Supreme Court has observed : "Prisoners, men and women regardless of means, are a peculiarly handicapped class. The morbid cell which confines them walls them off from the world outside. Legal remedies, civil and criminal, are often beyond their physical and even financial reach unless legal aid is available within the prison as is provided in some State in India and in other countries. Without legal aid, petitions of appeal, applications for commutation or parole bail motions and claims for administrative benefits would be well nigh impossible. There is a case for systematised and extensive assistance through legal aid lawyers to our prison population." The Supreme Court has thus concluded that Article 39A of the Constitution is an imperative tool of Article 21 and that section 304 of the Code of Criminal Procedure is only a partial statutory implementation of the mandate in Article 39A of the Constitution. It has, accordingly pronounced : "Where the prisoner is disabled from engaging a lawyer, on reasonable grounds such as indigence or incommunicado situation, the Court shall, if the circumstances, of the case, the gravity of the sentence, and the ends of justice so require assign competent counsel for the prisoner's defence, provided the party does not object to that lawyer .. ......The State which prosecuted the prisoner and set in motion the process which deprived him of his liberty shall pay to assigned counsel such sum as the court may equitably fix. 7. Yet in another judgment in Hussainara Khatoon and others vs. Home Secretary, State of Bihar, Patna, ( AIR 1979 S.C. 1369 ) the Supreme Court has reiterated : "That free legal services to the poor and the needy is an essential element of any 'reasonable' fair and just procedure." And after quoting Article 39A said : "This Article also emphasises that free legal service is an unalienable element of 'reasonable, fair and just' procedure for without it a version suffering from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal services is, therefore, clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. The right to free legal services is, therefore, clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so required, provided of course the accused person does not object to the provision of such lawyer." 8. In Khatri and others Vs. State of Bihar and others (1981 A.I.R. S.C. 928) and Suk Das and another vs. Union Territory of Arunachal Pradesh (A.I.R. 1986 SC 991) it has been said that the law as to the right to free legal service is clearly an essential ingredient to reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21 of the Constitution. The court has gone a step further saying that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or his property and the exercise of this fundamental right conditioned upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance being afforded to him. In Ranjan Dwivedi vs. Union of India (A.I.R. 1983 S.C. 624), however the Supreme Court declined to issue mandamus saying that the remedy of the petitioner, if any, was by way of making an application before the trial court under sub-section (1) of Section 304 of the Code of Criminal Procedure and not by a petition under Article 32 of the Constitution but observed: "In recent years, it has increasingly been realized that there cannot be any real equality in criminal cases unless the accused gets a fair trial of defending himself against the charge laid and unless he has competent professional assistance." It would have been easier to straight way conclude that the accused respondents are entitled to legal aid at State expense, had this been either a trial or an appeal or revision arising out of an order of conviction or acquittal. The present proceeding has arisen on account of an application under section 186 of the Code of Criminal Procedure invoking jurisdiction of this Court under section 186 (b) of the Code of Criminal Procedure. Section 186 states: "Where two or more courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the question shall be decided- (a) if the courts are subordinate to the same High Court, by that High Court; (b) if the courts are not subordinate to the same High Court, by the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced, and thereupon all other proceedings in respect of that offence shall be discontinued." 9. The petitioner, State of Bihar has contended that a sessions court within this Courts appellate jurisdiction had taken cognizance of the offence, of which a sessions court in Delhi also has taken cognizance of. A close examination of the language of section 186 of the Code thus makes it clear that exercise of jurisdiction under section 186 of the Code is an extension of the appellate criminal jurisdiction of this Court. Section 304 no doubt states about a trial before the court of sessions, but courts in India have accepted as a rule that appeals are always a continuation of the trial. If this interpretation is accepted, the respondents may be entitled to invoke their legal aid right under section 304 of the Code. Section 304 no doubt states about a trial before the court of sessions, but courts in India have accepted as a rule that appeals are always a continuation of the trial. If this interpretation is accepted, the respondents may be entitled to invoke their legal aid right under section 304 of the Code. This Court shall have to extend legal aid to them at State expense, if, they themselves do not object. Rules framed by this Court with the previous approval of the State Government under sub-section (2) of Section 304 of the Code, however, has not taken notice of the right of the accused for legal aid at State expense in appeals or revisions arising out of the orders of the trial court. The Supreme Court, however, in M.H. Hoskot (supra) has clearly said : "Where the prisoner seeks to file an appeal or revision, every facility for exercise of that right shall be made available by the Jail Administration and where the prisoner is disabled from engaging a lawyer, on reasonable grounds such as indigence or incommunicado situation, the Court shall, if the circumstance, and the ends of justice so require, assign competent counsel for the prisoner's defence, provided the party does not object to that lawyer." and further : "These benign prescriptions operate by force of Article 21 (strengthened by Article 19 (1) (d) read with sub art. (5) from the lowest to the highest court where deprivation of life and personal liberty is in substantial peril." This Court, can not but stand for protection of the fundamental right of legal aid to the accused at State expense, a right guaranteed under Article 21 of the Constitution of India. The respondents accused in my view are entitled to claim legal aid at State expense. 10. The State Bar Council has not constituted any legal aid committee. Section 9 A of the Advocates Act has, thus, remained a pious wish. This is a provision inserted by the Advocates, (Amendment) Act, (Act 60 of 1973) in order to provide legal aid to the deserving. Sub section 2 of Section 9A states that the qualifications, the method of selection and the term of office of the members of the legal aid committee shall be such as may be prescribed. This is a provision inserted by the Advocates, (Amendment) Act, (Act 60 of 1973) in order to provide legal aid to the deserving. Sub section 2 of Section 9A states that the qualifications, the method of selection and the term of office of the members of the legal aid committee shall be such as may be prescribed. No rules laying down qualifications, the method of selection and the term of office of the members of a legal aid committee have been brought to my notice. Rule 46, however, under section 6 of the rule framed under section 49 (1) (c) of the Advocates Act is there to remind the lawyers that in the practice of the profession of law they have to render free legal assistance to the indigent and oppressed. This Court has, as and when, required called upon the Advocates practising in this Court to render free legal assistance. Learned advocates have invariably responded to such calls. Rules framed by this Court under section 34 (1) of the Advocates Act, however, limit the choice of the lawyer to persons who are on the roll of the State Bar Council and who ordinarily practice in this Court. Rule 3 states: "An Advocate who is not on the Roll of Advocates of the Bar Council of the State in which the court is situate, shall not appear, act or plead in such court, unless he files an appointment along with an advocate who is on the Roll of such State Bar Council and who is ordinarily practising in such court." Except as otherwise provided for in any law for the time being in force, Rule 2 says. "No advocate shall be entitled to appear, plead or act for any person in any court in any proceeding unless the advocate files an appointment in writing signed by such person or his recognised agent or by some other person only authorised by or under a power of attorney to make such appointment and signed by the advocate in token of its acceptance or the advocate files a memorandum of appearance in the form prescribed by the High Court ……. Provided further that nothing herein contained shall apply to an advocate who has been requested by the court to assist the court amicus curie in any case or a proceeding or who has been appointed at the expense of the State to defend an accused person in a criminal proceeding." These provisions together, thus, make it imperative that any person desiring to appoint a counsel to act and plead on his behalf has to appoint at least one advocate who is on the roll of the State Bar Council and who is ordinarily practising in the Court. More than one counsel may be appointed. Those, however, who are not on the roll of the State Bar Council may not be allowed to represent unless there is at least one advocate appearing who is qualified as prescribed being on the roll of the State Bar Council and ordinarily practising in the Court. 11. Respondent nos. 4 and 5 have applied for legal aid. They, however, appear to think that legal aid at State cost will enable them to extract expenses of counsel whom they may decide to appoint. I have already noticed that the right to be represented by a counsel of his choice is not to be confused by the right to receive legal aid at State expense. Such legal aid shall be provided to the accused-respondents on the courts satisfaction, that the accused has not sufficient means to engage a counsel. "Sufficient means to engage a counsel", however, has to be interpreted in consonance with the spirit of Article 39 A of the Constitution which says, "opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities." Economic disability is one compulsion. There may be many other compulsions. That is why the Supreme Court has said, "on reasonable grounds such as indigence or incommunicado situation". Considering the right of a prisoner sentenced to imprisonment, the Supreme Court has said in M. H. Hoskot (supra) : "If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, inclusive of special leave to appeal, for want of legal assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned Individual "for doing complete justice." 12. Respondent nos. Respondent nos. 3 to 5 are imprisoned as under trial in Tihar Jail in Delhi. They have made their applications in this Court through the Deputy Superintendent Central Jail No.3, Tihar, New Delhi. They have, thus, communicated to this Court through the State agency seeking legal aid. This in my view, is a situation in which this Court may conclude that they have a disability that may not allow them to engage a lawyer of their choice and therefore, a lawyer of such standing who may fully and adequately represent their cases at the hearing of the application should be provided to them at State expense. 13. To conclude (i) accused-respondents are entitled to be defended by any lawyer of their choice (ii) however when they are not represented by a counsel of their choice this Court, on the facts and in the circumstances of this case may assign a lawyer of sufficient standing for their defence at the expenses of the State, if they do not object. (iii) Such expense shall be determined by the court to be paid to the counsel assigned for their defence which shall include cost of litigation as well as fees payable to the counsel assigned for their defence, and (iv) the lawyer assigned for their defence, however, shall be one on the roll of the Bihar State Bar Council and ordinarily practising in this Court. 14. Respondent no. 2 is represented by Mr. Karan. Respondent no. 3, however, is not represented. He has not made any application for legal aid a. State expense. I have already noticed that even in cases where no application is made by the accused for legal aid at State expense if he is not represented before the court, the court may assign a lawyer for his defence at the expense of the State. In case respondent no. 3 is not represented by the next date fixed he may fall in the category of the accused not represented by a lawyer and he too like respondent nos. 4 and 5 may be entitled to a lawyer to be assigned for his defence at the expense of the State. 15. I have, however, given a careful consideration to the prayer made by respondent nos. 4 and 5 to vacate or modify the order of stay. 4 and 5 may be entitled to a lawyer to be assigned for his defence at the expense of the State. 15. I have, however, given a careful consideration to the prayer made by respondent nos. 4 and 5 to vacate or modify the order of stay. This Court has issued the interim order in the following terms :- "I direct that pending hearing of this application the Union of India, opposite party no. 1, and the Delhi Administration, opposite party no. 6, be restrained from proceeding further with the trial in the court of the Sessions Judge, Delhi, of the case arising out of Tughlak Road P. S Case No. 241/84 founded on the second charge sheet." Had the respondents entered appearance, the main application would have been disposed of by now. If the aforementioned order is continuing and the main application has remained pending, it is not for the reason of any delay on the part of any other person but non-appearance of the respondent nos. 3, 4 and 5. If they respond by the next date and cooperate with the proceedings, there is no reason why the application would not be disposed of expeditiously. Any variation of the interim order may put the trial court in Delhi in a situation that it shall be proceeding with the second charge with respect to the same offence which may not be permissible, if finally the main application of the petitioner is allowed. It is in my view, not in the interest of justice to modify the interim order. 16. In the result, the application at Flag-Y on behalf of respondent nos. 4 and 5 are disposed of with the direction as above. Let respondent nos. 4 and 5, accordingly, be informed. Learned counsel for the petitioner states that he may get the orders passed today communicated and served upon respondent nos. 3 to 5 who are presently lodged in Tihar Jail. Let three copies of this order be handed over in sealed cover to the learned counsel for the petitioner for service upon respondent nos. 3 to 5. 17. Let a notice issue accompanied by the order passed today stating that the case shall be finally beard on 14th of December, 1989, with the consent of the parties. Let three copies of this order be handed over in sealed cover to the learned counsel for the petitioner for service upon respondent nos. 3 to 5. 17. Let a notice issue accompanied by the order passed today stating that the case shall be finally beard on 14th of December, 1989, with the consent of the parties. Let notice also be handed over in the same sealed cover to the learned counsel for the petitioner for service upon the aforementioned respondents. Let a copy of this order also be handed over to Mr. J. P. Karan.