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. 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 Government to provide Rs. 1,70,500/- (1988-89), Rs. l,57,250/- (1989-90) and 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 Government to provide Rs. 1,70,500/- (1988-89), Rs. l,57,250/- (1989-90) and Rs. 64,000/- (1990-91), but the State Government has not accepted the proposal and provided only Rs. 4,000/- (1988-89), Rs. 50,000/- (1989-90) and Rs. 7,000/- (1990-91) for the purpose. According to the Registrar, High Court - is, therefore, unable to do anything in the matter. ( 5 ) THE learned Advocate General informed the Court that the matter was receiving urgent attention of the State Government and a decision would be taken shortly. He submitted that this Court cannot fix any amount either as remuneration of expenses, as such an order might disturb priorities of the State Government and create financial problems. He, however, admitted that the State has the obligation to provide legal aid to prisoners in Jail, both-under section 304, Cr. P. C. and Article 21 of the Constitution. ( 6 ) SECTION 304 Cr. P. C. deals with those sessions cases where accused is not represented by an Advocate because of his poverty or indigence. Since appeal is treated to be the continuation of original trial, the benefit of this provision can be had at the appellate stage also. It must be remembered that this provision is a new provision and was added in the Action the recommendations of the Law. Commission of India (See 48th Report, paras 26, 27 and 28 ). The Commission was of the view that the defence of the indigent accused by an Advocate assigned by the State should be made available to every person accused of an offence so that mere poverty may not stand in the way of his adequate defence. This is also the requirement of Article 39-A of the Constitution, which obliges the State to secure the operation of legal system in a manner as to promote justice on the basis of equal opportunity and for that purpose, obliges it to make provision for free legal aid. It is for this reason that the learned Advocate General did not dispute that the obligation of the State to provide legal aid to the appellant and others like him flows from section 304, Cr. It is for this reason that the learned Advocate General did not dispute that the obligation of the State to provide legal aid to the appellant and others like him flows from section 304, Cr. P. C. Even otherwise, in Madhav Hayawadanrao Hoskot v. State of Maharashtra (supra) and Hussainara Khatoon and others v. Home Secretary. State of Bihar, Patna,2 it has been held that right to free legal service is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and is implicit in the guarantee of Article-21 of the Constitution. In Suk Das and another v. Union Territory of Arunachal Pradesh3 the Supreme Court further II emphasised that free legal assistance at State cost is a fundamental right of person accused of an offence, which may involve jeopardy to his life or personal liberty. This exercise of his fundamental right is not conditional upon the accused applying for free legal assistance and hence cannot be denied to him for that reason alone. Trial of an accused, without legal assistance, was held to be illegal. The Court observed that it would be a mockery of legal aid, if it were to be left to a poor, ignorant and illiterate accused to ask for free legal service. In Khatri and others v. State of Bihar and others4, it was emphasised the State Govt. cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative inability. It further observed that the State may have its financial constraints and its priorities in expenditure, but the law does not permit the Government to deprive its citizens of constitutional rights on a plea of poverty. These decided cases, which constitute the law of the land, without, doubt, indicate that convicts like the appellant, who are unable to engage an Advocate of their own because of indigence, are entitled, as of constitutional right, to be defended by an Advocate at State expense and such a right cannot be denied to them on the ground of either priority or financial difficulty. ( 7 ) IN spite of it, the financial impact of this provision may be examined to ascertain the capacity of State to bear the burden. ( 7 ) IN spite of it, the financial impact of this provision may be examined to ascertain the capacity of State to bear the burden. Present position of jail appeals filed at the main seat of the High Court at Jabalpur is as under: Year Institution Disposal 1986 340 154 1987 251 36 1988 276 20 1989 267 17 The aforesaid trend in the context of increasing number of sessions cases in the State is somewhat surprising. It may be that convicts are gradually losing faith in the capacity of this Court 4 to give justice to them and, are, therefore, not filing appeals. Decreasing number of disposal of these appeals indicates that the Court is not able to hear and decide these appeals in the absence of representation on behalf of the appellants. Be that as it may, total number of jail appeals in this High Court is not likely to be more than 700 per year. Similarly, yearly disposal of such appeal by the High Court would not be more than 350 each year. Under the circumstances, if the State pays Rs. 100/- per appeal, the year expenditure would be only Rs. 35,000/- only. It would be Rs. 70,000/-per year at the rate of Rs. 200/- per appeal, Rs. 87,500/- at the rate of Rs. 250/- per appeal and Rs. 1,75,000/- per year at the rate of Rs. 500/- per appeal. Obviously, the burden is not of any significance to the state, which swears in the name of the Constitution and claims to work for poor and indigents. ( 8 ) THERE is yet another aspect of the matter. Legal aid to such persons has to be real and effective and not a mere show of it to be termed as a mockery of legal aid. It should also be able to achieve the purpose of defending the indigent appellant effectively. It is somewhat surprising that though such an accused person is given at the sessions trial the help of an Advocate of at least 5 years standing, he is provided the Advocate of 3 years experience at the most, in the High Court. An Advocate of 1 of 3 years standing does not, in the opinion of this Court provide any real legal aid to such an appellant. An Advocate of 1 of 3 years standing does not, in the opinion of this Court provide any real legal aid to such an appellant. Ii is common experience that Advocates learn law in Law Courts and take years to understand technicalities of sessions trial. It is also our experience that Advocates upto three years standing at Bar are not able to make submissions effectively on behalf of the appellant in jail. In this view of the matter, the present legal aid given to the appellant and others like him is nothing, but mockery of legal aid. It is neither real nor effective. ( 9 ) BUT, then one cannot expect and advocate of any consequence to work in an appeal from beginning to end for Rs. 50/- only which sum includes expenses in preparation of appeal record. Indeed, the whole amount, in the context of present price structure, is not even sufficient to prepare copies of judgment and evidence. It is, therefore, obvious that as long as the present state of affairs continues, the appellants serving their sentence in jails have no chance of getting their appeals decided. It is also obvious that no one would make efforts for their release on bail and many of them would have served their sentence before their appeals are heard and decided by this Court. What is then the alternative? Can this Court give directions in this regard and fix proper remuneration of the advocate? Submission of the learned Advocate General is that this Court cannot do so; it an; at the most, recommend framing of rules u/u 304, Cr. P. C. to cover; jail appeals in the High Court and await its result. In fact, learned Advocate General submitted that heavens would not fall if the present system is continued for some more time. If these unfortunate appellants were being reprinted by advocates appointed by the High Court, the Court would have immediately agreed with the learned Advocate General and would have allowed the heaven to fall, whenever it chose to fall. The fate of these unfortunate appellants is, however, troubling the conscience of this Court. Must an unfortunate indigent appellant go without hearing? Is it not the obligation of this Court to hear and decide the appeal of such an unfortunate appellant within a reasonable time and before he has served out his sentence? The fate of these unfortunate appellants is, however, troubling the conscience of this Court. Must an unfortunate indigent appellant go without hearing? Is it not the obligation of this Court to hear and decide the appeal of such an unfortunate appellant within a reasonable time and before he has served out his sentence? Articles 21 and 39-A of the Constitution compel this Court to refuse to accept the status-quo. As regards power and jurisdiction, section 482, Cr. P. C. vests it with all powers necessary to do justice and is, therefore, sufficient to reject the submissions of the learned Advocate General. This Court is reluctant to be handicapped in any manner in doing justice and is really enthusiastic to do in these cases as they concern unfortunates and indigents. Indeed, this Court is not able to forget the observations of the Supreme Court in Rachod Mathur Wasawa v. State of Gujarat5, that indigence should never be a ground for denying trial and equal justice. T ( 10 ) IT has been earlier held that legal aid should be real and effective and not the mockery of legal aid. It should, therefore, be given to the appellants not as charity, but in fulfilment of constitutional obligation. A knowledgeable and experienced lawyer is, therefore, the first requirement. Though mere standing at the Bar is neither decisive of knowledge or experience, it Tcan surelyt serve as a guideline. This Court, would, therefore, think that a willing advocate of at least 5 years practice at the Bar should be entrusted with these appeals. In appeals involving capital punishment, advocates of about 10 years standing and experience of criminal cases should be engaged. In appeals involving capital punishment, more than one advocate may even be engaged depending upon exigencies of the case. In order to make this serve an important social purpose, preference may be given to lady advocates, who need such preference to remain in the profession. It is, therefore, directed that the Registrar of this Court would appoint Advocates of at least 5 years practice at the Bar and willing to undertake this work, to represent appellants in Jail appeals. However, in cases involving capital punishment the Registrar shall appoint only the Advocate of at least 10 years standing and experience in criminal cases and if necessary may appoint more than one advocate for the purpose. However, in cases involving capital punishment the Registrar shall appoint only the Advocate of at least 10 years standing and experience in criminal cases and if necessary may appoint more than one advocate for the purpose. The list of such advocates may be prepared on the basis of existing rule or practise. ( 11 ) WHAT should be the proper remuneration of the Advocate appointed by the High Court to provide legal aid to appellants in jail? Considering the standard of legal fees at the present, it must, at once, be accepted that the State cannot be expected to pay the same amount as is paid, by individuals for their own work. Then, the members of the Bar are also expected to share the missing of legal aid and make concession. Indeed, the members of the Bar present in the Court at the time of hearing of this matter, frankly told the Court that they do not expect full compensation; though they expect a sum that may not amount to contempt of their respectable profession. Taking these sentiments and all other, facts and circumstances into consideration, this Court thinks that an amount of Rs. 250. 00 (Rupees Two Hundred Fifty) per appeal per day should be the proper remuneration. If hearing of any particular appeal lasts more than four hours and is carried on next day, an additional sum of Rs. l00. 00 should be paid for the next day of hearing. In cases involving capital punishment, imprisonment for life or R. I. for 10 or more years, the amount should be Rs. 400. 00 and Rs. 150. 00 respectively. It is, therefore, ordered that the Registrar will make payments to the advocates engaged for providing legal aid to appellants serving jail sentence and not represented by advocate, at the aforesaid scale. The State Government is directed to make available necessary funds to the High Court for the aforesaid purpose. Int case of default of the State Government in making available necessary funds to the High Court, the amount so ordered will be recovered under section 431, Cr. P. C. ( 12 ) THIS leaves the question of making available copies of record to the advocates engaged in jail appeals. As far as appeals heard by Division Bench are concerned, paper books are being prepared by this Court and made available to the advocate. P. C. ( 12 ) THIS leaves the question of making available copies of record to the advocates engaged in jail appeals. As far as appeals heard by Division Bench are concerned, paper books are being prepared by this Court and made available to the advocate. Nothing is, therefore, required to be done in such cases. The problem, however, arises in appeals heard by Single Judges Bench for which no paper book is prepared. The amount of Rs. 250. 00 payable to advocates in such appeals is not sufficient to cover expenses in preparing record This Court is informed that the District Magistrates are preparing such records for use of the office of Advocate General. If one extra copy for use of the appellants advocate is prepared and given to him, it will solve this problem also. As long as this obligation, is not accepted by the Advocate General and in those cases where record is not made available at the appellants advocate, the advocate should be paid Rs. 50/- per appeal as expenses for this purpose and it is so ordered accordingly. ( 13 ) IN view of the discussion aforesaid, it is ordered as under: - (i) An Advocate engaged by the High Court to provide legal aid to an appellant filing his appeal from jail would be paid Rs. 250/- per appeal per day, as his remuneration. If hearing of the appeal lasts for more than four hours, on a particulars day and is not completed and for that reason is adjourned to next day, the Advocate will be paid a further sum of Rs. 100. 00 for each such additional day. In appeals involving capital punishment, imprisonment for life or R. I. for 10 years or more, the amount payable would be Rs. 400. 00 and Rs. 150. 00 respectively; (ii) The Advocate engaged, as afore-said, will be supplied with copy of appeal record for his use. In cases where the record is not made available, as aforesaid, he will be paid Rs. 50. 00 per appeal as expenses for preparation of record. Only Advocates of five years and more standing at the Bar, would be engaged to provide legal assistance to appellant in jail and in. so doing, preference may be given to lady Advocates. In cases where the record is not made available, as aforesaid, he will be paid Rs. 50. 00 per appeal as expenses for preparation of record. Only Advocates of five years and more standing at the Bar, would be engaged to provide legal assistance to appellant in jail and in. so doing, preference may be given to lady Advocates. In cases involving capital punishment or R. I. for more than 10 years, an Advocate of at least 10 years standing and experience of criminal case, should be engaged. ( 14 ) THIS order will come into effect immediately and apply to all pending appeals in the High Court. Order accordingly. .