cpc

life of memorandum of appearance in criminal appeal


Dear friends, In Allahabad High Court crminal appeals are coming for final hearing after 30 years. In many cases the counsel filing the appeal may have died and on average in half of the it is altimately reported that the accused is no more.Further, the appeal may have been filed at that time at a nominal fees and the counsel may have been engaged on argency basis for the purposes of getting bail order. Criminal appeals are filed by the counsels on the basis of memorandum of appearance and there is no Vakalatnama signed by the party. Now, when the appeals are being listed for final hearing the counsels lack instructions from the client as they are not in contact with them. In this situation the High Court has taken serious view against the counsels for mass non appearance. The court invited my opinion in this repect. My prelimary view and the proceedings of the court are given below.
As the question is of general importance, I humbly request learned advocate members of the LCI to give their opinions and suggestions.


"Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 940 of 1982

Petitioner :- Abdul Salaam
Respondent :- State
Petitioner Counsel :- P.C. Jhingam,K.K.Singh,R.P. Agrawal
Respondent Counsel :- Aga
Order dated 11/9/2012
Hon'ble Ran Vijai Singh,J.
Case has been called out. No one appears for the appellant.
It is being noticed by this Court that when the criminals appeals are called out, the counsel are not appearing.
Since, normally, the criminal appeals cannot be decided in absence of the counsel, therefore, I have requested the learned A.G.A. and Dr. V.N. Tripathi, who were present in Court to apprise the Court that what would be the duration of the memorandum of appearance filed by the counsel while filing the appeal. Dr. Tripathi has invited attention of this Court towards Rule 2 as well as sub-rule (2) of Rule 6 of Chapter 24 of Allahabad High Court Rules, 1952, which are reproduced hereinunder:
"Rule 2 Certain conditions of advocate's appearance in Court :- Save as otherwise provided in any law for the time being in force, 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 recognized agent or by some other person duly authorized 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 that where an advocate has already filed an appointment in any proceeding, it shall be sufficient for another advocate, who is engaged to appear in the proceedings merely for the purpose of pleadings, to file a memorandum of appearance or to declare before the Court that he appears on instructions from the advocate who has already filed his appointment in the proceeding :
Provided further that nothing herein contained shall apply to an advocate who has been requested by the Court to assist the Court in any case or proceeding or who has been appointed at the expense of the State to defend an accused person in a criminal proceeding.
Explanation:- A separate appointment or a memorandum of appearance shall be filed in each of the several connected proceedings notwithstanding that the same advocate is retained for the party in all connected proceedings.
Sub rule (2) of Rule 6. Appointment of advocate in civil or criminal matters :-
(2) In criminal cases, the appointment of an advocate unless otherwise limited, shall be deemed to be in force until determined with the leave of the Court by writing signed by the party or the advocate, as the case may be, and filed in Court or until the party or the advocate dies, or until all proceedings in the case are ended so far as regards the party."
Sri Tripathi submitted that since there is no appointment of the counsel as in the civil cases in conformity with the form 19 Appendix 'H' of the Code of Civil Procedure, which is prescribed for vakalatnama, therefore, the memorandum of the appearance would not continue after admission of the appeal and grant of bail to the accused and that will not have the same effect as provided under Order 3 Rule 4 of Code of Civil Procedure.
But the submissions of Sri Tripathi appears to be contrary to the provisions of sub rule (2) of Rule 6, from the perusal of which, it transpires that once the counsel has put in appearance, may be by way of filing memorandum of appearance, his continuance will continue unless it is determined with the leave of the Court by writing signed by the party or the advocate as the case may be and filed in Court or until the party or the advocate dies, or until all proceedings in the case are ended so far as regards the party.
Therefore, prima facie, it appears that it is not the sweet will of the counsel to not appear in the Court when the appeals are listed for hearing as non-appearance would not only show disrespect to the Court, but it is also against the legal, moral and ethical duty of a counsel and, prima facie, falls in the ambit of professional misconduct. Since this a question of general importance, therefore, I request Sri V.P. Srivastava, learned Senior Advocate (the President Bar Association) as well as Sri M.D. Singh Shekhar, learned Senior Advocate, President Advocate Association, to assist the Court on this point. The learned Additional Advocate General is also requested to render his assistance on this point.
List this appeal on 20.9.2012 at 02.00 p.m.
Registry of this Court is directed to provide the copy of this order to the aforesaid learned counsel as well as learned Government Advocate within a period of three days."

Order dated 20/9/2012:
"Hon'ble Ran Vijai Singh,J.
Pursuant to the order of this Court dated 11.9.2012, Sri Vibhu Bhushan, learned Additional Advocate General assisted by Sri R.K. Singh, learned Additional Government Advocate has appeared and invited the attention of the Court towards Part VI, Chapter II, Rule 12 of the Bar Council of India Rules, which reads as under:
"Section II - Duty to the Client.
12. An advocate shall not ordinarily withdraw from engagements, once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned."
He has also invited the attention of this Court towards Rule 2 of Chapter XXIV, which talks about the filing of memo of appearance in the form prescribed by the High Court.
Dr. V.N. Tripathi has submitted that the word 'appointment' and the memo of appearance, as used in Rule 2 of Chapter XXIV, have different meaning and cannot be substitute of each other and there is a basic difference in between two, therefore, sub-rule 2 of Rule 6 will not be attracted in a case where only memo of appearance has been filed and no appointment of counsel has been made.
In view of the Office report with regard to the service of order on the counsel requested by the Court to appear, it appears, only Office of learned Government Advocate has been informed and no information has been given either to Sri V.P. Srivastave, learned Senior Advocate (the President Bar Association) or to Sri M.D. Singh Shekhar, learned Senior Advocate (the President Advocate Association).
The Office to explain as to why necessary information, as directed by this Court, has not been sent.
List this case on 11.10.2012.
The Registry of this Court is directed to inform this order as well as the earlier order of this Court dated 11.9.2012 to Sri V.P. Srivastave, learned Senior Advocate (the President Bar Association) and Sri M.D. Singh Shekhar, learned Senior Advocate (the President Advocate Association) within a week.
The date fixed on 11.10.2012 is only for the limited purpose and not related to this appeal. For all other purposes, the case shall be listed on the date fixed in the order passed today on the memo of appeal.


 
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