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Therefore, according to the respondent, the relief asked for in the writ petition cannot be sustained. The maintainability of the writ petition preferred by the accused, and not by the counsel. has also been challenged in the counter-affidavit. Respondent has denied, that consent was given by Mr. Doraisami to appear on behalf of the petitioner, on condition that he would be paid on par with public Prosecutors, considering the volume of the case. The respondent was also not aware of the Designated Court having asked the counsel to prefer applications to be forwarded to the Government through the High Court, for fixation of fees. The Counter-affidavit reiterates that the State Government had considered the question of payment of fees and had arrived at the conclusion that the request of the petitioner cannot be compiled with. It further states, that the claim for payment to a lawyer appointed as State Brief, on par with public Prosecutor specially appointed by the Central Governments, cannot be sustained. The appointments/engagements, cannot be sustained. The appointments/engagements are by two different agencies who are not governed by the same Rules. In the counter-affidavit, it has been further stated that fees for engagements of counsel for the accused is governed by Legal Aid to Poor Accused Rules. 1976 framed in exercise of the powers conferred by sub-section (2) of Section 304, Cr.P.C. (Central Act 2 of 1974). The said rules framed by the High Court govern all cases of State Briefs for the accused, who are engaged to defend the accused. Once Brief is assigned to a counsel for the accused before a Court, the fee payable will be the fee that is mentioned under Rule 9 of the said Rules. Petitioner's counsel has been engaged as State Brief Counsel under the said rules and he has accepted the same and the trial of the case has been proceeding, in which he has been participating. Petitioner's counsel is not entitled to insist, as against the said rule, that he should be paid fees on par with counsel for the Central Government. The Public Prosecutor appointed by the Central Government is one who had been engaged by the Central Government and not under the Rule mentioned above and therefore to state that the fee for counsel appointed by a different person (Central Government), should be the same for counsel appointed by the State Government, cannot be sustained. In conclusion, the counter affidavit states that the earlier judgments of this Court do not lay down any legal proposition that for state briefs, the state has power to act against the rules made specifically for the purpose. A further prayer has been made to this Court, not to depart from the said rule.

"It is not in our knowledge and learned counsel appearing in the case are also unaware that any rules have been framed by the High Court with the previous approval of the State Government under Section 304(2) of the Code of Criminal Procedure. Probably no such rules have been framed. There are some rules framed for payment of fee and selection of lawyers who appeared on behalf of legal aid committees, but whether they are statutory rules or not, is not known."

Apparently, the said Division Bench was not made aware of "Legal Aid to Poor Accused Rules 1976" framed in exercise of the powers conferred by sub-section (2) of Section 304, Criminal Procedure Code, by the High Court with the previous approval of the Government of Tamil Nadu. It was therefore that the learned Special Government Pleader submitted that the directions issued by the said Division Bench to the State Government, to pay Mr. Shankaran, a Senior Counsel of this Court, in the same way and as the same rate as the counsel for the prosecution cannot be held to have laid any uniform or rigid principle for universal acceptances, since the said Division Bench had no occasion to consider the rules framed under Section 304(2), Cr.P.C.

23. At this Stage, it is relevant to refer to the order of another Division Bench of this Court in H.C.P. No. 1946 of 1993 (Shaik Babu v. Sub-Inspector of Police, Rajkadai P. S.) (Order dated 2-12-1993) wherein the prayer made was to appoint a particular advocate as the defence counsel, though already the Legal Aid Centre had assigned a counsel for the petitioner wherein, to be defended in a sessions trial. Srinivasan, J., speaking for the Division Bench stated as follows :

"We are of the view that the Code of Criminal Procedure is a self contained Code and the procedure described therein for the purpose of nominating counsel to defend the accused has to be followed. That cannot be ignored and the reason is quite plain. It is the Sessions Judge, who can take into account the facts of the case before him and choose an appropriate lawyer for the accused. No doubt as per the rules framed under Section 304 Code of Criminal Procedure, the lawyer has to be chosen from the panel. But this is only a general rule. If the circumstances of the case warrant and if there is no lawyer in the panel, competent to appear for the accused, it is open to the Sessions Judge, to nominate a lawyer invoking the provisions of the proviso to Rule 2. It is open to him to appoint a senior member of the bar. But there is no provision which provides that the accused can choose a lawyer from outside the district and insist upon such lawyer being assigned to him. It cannot be contended that the accused can choose a lawyer from anywhere in the country. That is not the intention of the code or the rules at all. What all is contemplated by Articles 21 and 22 is that the accused must be represented by a competent lawyer so that he will have a fair trial. It is sufficient if the competent lawyer is chosen within the district. It cannot be stated in this case that there is no competent lawyer in the district who can represent the accused."

26. As rightly pointed out, by learned special Government Pleader, the minimum qualification for appointment as Prosecutor under TADA Act is 10 years and several counsel engaged to conduct this prosecution, have a standing of several years in the Bar, which can in no way stand comparison to the defence counsel appointed as State Brief, in this Calendar Case. We have defence counsel who have less than 10 years of experience, while two of them have experience over 20 years. We cannot overlook that the counsel concerned have accepted their nominations to act as State Brief Counsel and thereafter if they have chosen to stay away from Court proceedings demanding "Shylock's flesh" that is bound to tell upon the nobility and the respect the legal fraternity enjoys in the society. There was no need to abstain from Court proceedings by State Brief Counsel, more so, when they have brought to the notice of this Court, that a just, fair and reasonable fee has not been fixed for them, with an appending prayer, that the State must be asked to honour its commitment, which certainly cannot be a Farce. Equally, enstead of insistence on rules framed under Section 304(2) Cr.P.C. The State, which must be aware of the prior decisions of this Court and the Supreme Court, and special treatment which certain cases of magnitude to deserve, need not have turned a blind eye to the demands of the counsel, forwarded by the Designated Judge, for consideration through this Court. It is rather unfortunate, that the State Government did not even choose to give weightage to the opinion offered by the then Advocate-General, that in view of the magnitude of the case and the work involved, C.C. No. 3 of 1992 may have to be treated as a special case and the counsel engaged should reasonably be paid a fee of Rs. 300/- or Rs. 400/- per day. When solutions could have been easily arrived at, continuing to keep them as problems does not benefit any one. As has been observed earlier, prosecuting counsel have been engaged by Central Government, on agreement to pay the fees stipulated by the counsel or agreed upon by them, whereas by virtue of the provisions of Section 304(2), Cr.P.C., read with the concerned rules, State Brief Counsel have been appointed for one or other of the accused, in this pending prosecution.