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Report No. 14

Appendix II

Recommendation of The Trevor Harries Committee on Legal Aid in West Bengal

1. Classes of persons who may be given legal aid.

(a) Civil Cases.-The following classes of persons whether figuring as plaintiffs, defendants, appellants or respondents, may be given legal aid;

(1) In cases where a fee is prescribed by law for the plaint or the memorandum of appeal.- Plaintiffs or appellants who are not possessed of sufficient means to enable them to pay such fee.

(ii) In all other cases.-Persons who are not entitled to property worth more than Rs. 250 other than their necessary wearing apparel and the subject-matter of the suit or appeal. In considering the question of means the committee shall take into consideration the total resources of the family.

(b) Criminal cases.-The following classes of persons may be given legal aid.-

(i) Persons charged with an offence punishable with death, or imprisonment for 5 years or more, or persons sentenced to death, or imprisonment for 5 years or more, when such persons have no means to defend themselves, whether in a court of a Magistrate, a Tribunal, a Sessions Court or a Court of Appeal.

(ii) Persons who appear to have acted bona fide in the exercise of the right of private defence of person or property when such persons have no means to defend themselves.

(iii) Persons who figure as informants in cognizable cases when such persons fail to get the help of the police or when the cases are not sent up by the police for trial. In such cases, the Committee may call for the police papers and if it is satisfied that there is a prima facie case, it may refer the case to the Director of Public Prosecutions or the local Public Prosecutor with its recommendation for initiating proceedings in court. In cases so recommended, no legal aid should be given unless the Director of Public Prosecutions or the Public Prosecutor, as the case may be refuses to take action.

2. Classes of cases, civil and criminal, in which legal aid may be given:

(a) Civil Cases.-All suits and cases except those relating to elections or defamation, provided that if there are special circumstances to justify it, the Committee may give aid to a woman plaintiff in a suit for damages for defamation when there is an imputation of unchastity to her.

(b) Criminal cases.-Legal aid will be admissible in the cases mentioned in paragraph 1(b).

3. The authorities to be constituted to decide the questions whether a person is eligible for aid and whether he has a proper case to be taken up:

(a) For the High Court of Calcutta, Original Side and Appellate Side.-In Calcutta, the Legal Aid Society may be reconstituted with representatives of the Bar Association and the Society so reconstituted may be entrusted, with the work of deciding the questions in respect of all classes of cases, civil and criminal.

(b) For the City Courts.-A committee may be constituted with the following members:?

(1) The Chief Judge of the Court or a Judge nominated by him.

(2) Three members of the Bar to be nominated by the Chief Judge.

(3) Three members of the Bar to be nominated by the Bar Association or Associations provided that until such Association or Associations are formed, these three members will also be nominated by the Chief Judge.

When the Chief Judge or a Judge nominated by him presides over a committee to decide the question whether legal aid may be given in a particular case, he should not try or hear the case at any stage.

(c) For the district.-Each district should have a committee presided over by a judicial officer of the rank of a Subordinate Judge exercising sessions power and consisting of six members of the Bar, three of whom would be nominated by the District Judge and three by the members of the Bar. The committee should deal with both civil and criminal cases provided that when civil cases are under consideration, the Government Pleader should be co-opted as a member and when criminal cases are under consideration, the Public Prosecutor should be co-opted as a member. The judicial officer who presides over the committee should not try or hear the case at any stage. If there be only one Subordinate Judge exercising the powers of an Assistant Sessions Judge in a district, he should not preside over the committee and in such a case, the Government Pleader or the Public Prosecutor, as the case may be, should preside over the committee.

When after considering a case, the committee decides that a person has a proper case to be taken up and is eligible for legal aid, no aid will be admissible to the opposite party in the case.

4. Selection of lawyers for conducting cases:

(a) High Court.-Lawyers should be selected by the Legal Aid Society.

(b) City Courts.-The Judge presiding over the committee for deciding the question of legal aid in a case will select a lawyer for the case from a panel of lawyers drawn up by the Chief Judge in consultation with the Bar Association or Associations.

(c) District Court.-The President of the Committee deciding the question of legal aid in a case, will select a lawyer for the case from a panel of lawyers drawn up by the District Judge in consultation with the President of the Bar Association.

5. Payment of costs of litigation and incidental and out-of-pocket expenses:

In all cases where aid is given to a person, no court fees, process fees and other fees should be payable by him and legislation should be undertaken to exempt such person from payment of all fees. Expenses of witnesses on account of diet and travelling allowance should be paid by the courts out of an allotment to be made by the Government for the purpose.

For cases in the High Court, lawyers' fees will be settled and paid by the Legal Aid Society. Such fees should not exceed 5 gms. per day provided that when the duration of the work does not exceed 3 hours, a fee of not more than 3 gms. will be payable.

In the City Courts and in the districts, lawyers fees will be paid by the Committee on certification of such fees by the trying courts and President of the committee. Such fees should not exceed Rs. 25 per day according to the nature of the case provided that a fee not exceeding Rs. 12 will be payable when the duration of the work does not exceed 3 hours.

The Legal Aid Society and the committee should have their own fund to be called the Legal Aid Fund. The State Government may make such grants to the fund as it may deem fit. Costs awarded in favour of a person who receives legal aid, shall be realised and credited to the State Revenues and an equivalent amount shall be contributed by the State Government to the Legal aid fund concerned.

A lawyer appearing in a case may, in the discretion of the committee, be paid the fees awarded by the court in the decree less any amount he may have already received from the Legal Aid Fund.



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