-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7232 OF 2004 With CIVIL APPLICATION NO.983 OF 2005 Mrs.Neelima Sadanand Vartak. .. Petitioner Versus State of Maharashtra & others .. Respondents Mr.A.V.Anturkar with Mrs.Vinita Bakre-Shastri for petitioner. Mr.R.M.Kadam, Advocate General with Mr.S.R.Nargolkar, AGP for respondent Nos.1 to 3 and 5 & 9. Mr.C.J.Sawant, Senior Advocate with Mr.R.V.Govilkar for respondent No.8. Respondent Nos.4, 6 and 7 are served. ----- CORAM : H.L. GOKHALE & CORAM : H.L. GOKHALE & CORAM : H.L. GOKHALE & SMT.R.S.DALVI, JJ. SMT.R.S.DALVI, JJ. SMT.R.S.DALVI, JJ. DATE OF RESERVATION OF JUDGMENT : 21st July 2005 DATE OF RESERVATION OF JUDGMENT : 21st July 2005 DATE OF RESERVATION OF JUDGMENT : 21st July 2005 DATE OF PRONOUNCEMENT OF JUDGMENT : 12th August DATE OF PRONOUNCEMENT OF JUDGMENT : 12th August DATE OF PRONOUNCEMENT OF JUDGMENT : 12th August 2005 2005 2005 JUDGMENT : (Per H.L.Gokhale, J.) JUDGMENT : (Per H.L.Gokhale, J.) JUDGMENT : (Per H.L.Gokhale, J.) 1. This writ petition invoking Articles 14 and 226 of the Constitution of India seeks to challenge the Notification dated 1st June 2004 issued by respondent Nos.1 and 2 appointing respondent No.8 as the Public Prosecutor for the District of Pune for a period of 3 years. The Notification is sought to be challenged as being in breach of Section 24 of the Code of Criminal -2- Procedure which contains the provision for the appointment of Public Prosecutors in the Districts under sub-sections (3), (4) and (5) thereof. 2. The petitioner has been working as a Law Officer for the State in Pune District right from 1986. Presently, she is working as Additional Public Prosecutor. Respondent No.1 to this petition is the State of Maharashtra, respondent No.2 is the Principal Secretary, Law and Judiciary Department, respondent No.3 is the Minister for Law and Justice, respondent No.4 is the Minister for State of Law and respondent No.5 is the Advocate General. Respondent Nos.6 and 7 are the then Cabinet Minister of Law and Judiciary and the Minister for State, Law and Judiciary, respectively when the impugned Notification was issued. Respondent No.9 to the petition is the District Magistrate and Collector of Pune. 3. Before we deal with the submissions of the petitioner as well as that of the State of Maharashtra and respondent No.8, it will be desirable to refer to the relevant provisions of the Code of Criminal Procedure ( "Cr.P.C." for short). As stated above, we are concerned with Section 24 of Cr.P.C. This section, as existing -3- in the Central Statute after the amendment with effect from 18.12.1978, reads as follows:- " 24. Public Prosecutors 24. Public Prosecutors 24. Public Prosecutors (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. (2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district, or local area. (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district: -4- PROVIDED that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district. (4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutors for the district. (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4). (6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from -5- among the persons constituting such Cadre: PROVIDED that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4). (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years. (8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. (9) For the purposes of sub-section (7) -6- and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate. " As far as the State of Maharashtra is concerned, sub-sections (1) and (4) of Section 24 were amended with effect from 20th May 1981. In sub-section (1) the words "after consultation with the High Court" were deleted and in sub-section (4) the words "in consultation with the Sessions Judge" were substituted by the following words " with the approval of the State Government". Since we are concerned with the appointment of a Public Prosecutor for a district by the State Government, sub-sections (3), (4) and (5) are relevant for our purpose. The amended sub-section (4) now reads as follows for the State of Maharashtra with effect from 20.5.1981:- -7- "The District Magistrate shall, with the approval of the State Government, prepare a panel of names of persons who are in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutor for the district." 4. The principal grievance of the petitioner is that sub-section (4) has not been followed inasmuch as the sub-section requires the District Magistrate to prepare a panel of names who, in his opinion, are fit to be appointed as Public Prosecutors. It is contended that the sub-section implies a short-listing of such persons. It also requires that the persons to be placed in the panel have to be fit for being appointed as Public Prosecutors. It is submitted that even though the words "in consultation with the Sessions Judge" are now deleted from this sub-section, inasmuch as fitness for being appointed as Public Prosecutor is the material requirement, the District Magistrate is expected to consult the Sessions Judge of the District who would be in the best know of such fit persons. As against this submission of the petitioner, the contention of the respondents is that after the amendment of the section, it is not mandatory to have a -8- consultation with the Sessions Judge. The District Magistrate has to prepare a panel of fit persons. The fitness, which is contemplated in this sub-section, is same as the eligibility under Rule 11 of the Maharashtra Law Officers (Appointment, Condition of Service and Remuneration) Rules, 1984. These rules are specifically invoked in the impugned order appointing respondent No.8 apart from Section 24(3) of Cr.P.C. and that the District Magistrate has tested the eligibility of the persons concerned. Although not mandatorily required, yet he has consulted the Sessions Judge and thus, there is no breach of Section 24(4) of Cr.P.C. 5. (a) In the petition it is stated that after the advertisement for the concerned post was issued by the District Magistrate, the petitioner made the necessary application giving her supporting documents. After coming to know about the appointment of respondent No.8 to this post, she wrote to the District Magistrate seeking certain information under the Maharashtra Right to Information Act. She had raised three questions and she did receive reply to those three questions from the District Magistrate. The three questions and the answers received were as follows:- -9- (i) Firstly, whether the report was sought from the District Judge regarding scrutiny of applications for preparing the panel as per the Notification of November 2003. Answer to this was Yes. (ii) The second question was as to whether the said reports were sent to the Government along with the panel and the answer received was Yes. The reports of the Hon’ble District Judge were sent to the Government, Law and Judiciary Department. (iii) The third question was as to how many applications out of the applications received in this connection were sent to the Government and the answer to this question was that the District Collector had received 25 applications for the post of Public Prosecutor, Pune and Baramati and all those applications were forwarded to the Government. (b). Another Government decision dated 15th December 2003 is also annexed to the petition constituting a committee of two persons viz. the Advocate General of the State and the Principal -10- Secretary, Law and Judiciary to scrutinise all the applications received for the post of Law Officers in the State and to prepare a list and forward the same through the Hon’ble Minister for State of Law and Judiciary and then the Minister of Law and Judiciary to the Chief Minister for the final decision. One of the submissions raised in the petition is that the papers were not sent to the Minister for State of Law and Judiciary contrary to this Government decision. 6. Before we deal with the rival submissions, it will be advisable to refer to some of the relevant judgements. As far as the nature of this office and its importance is concerned, the same has been emphasized in paragraphs 71 to 78 in the judgment rendered in the case of State of U.P. & State of U.P. & State of U.P. & anr. vs. Johri Mal reported in (2004) 4 SCC 714 anr. vs. Johri Mal reported in (2004) 4 SCC 714 anr. vs. Johri Mal reported in (2004) 4 SCC 714. It has been emphasized therein that the District Government Counsel are not only officers of the Court but they also represent the State. The Court reposes a great confidence in them and their opinion carries great weight. They are supposed to render independent, fearless and non-partial views before the Court irrespective of the result of the litigation. They are supposed to perform statutory duties independently having regard to -11- various provisions in the Cr.P.C. and particularly Section 320 thereof. They play a significant role in order to increase certainty of conviction in genuine cases. They represent interest of the general public before a Court of law. They must, therefore, have character, competence, sufficient experience and also a standing at the bar. It is, therefore, necessary to employ meritorious and competent persons in this high office. This was emphasized earlier in State of U.P. & ors. vs. U.P. State Law State of U.P. & ors. vs. U.P. State Law State of U.P. & ors. vs. U.P. State Law Officers Association & ors. reported in (1994) 2 Officers Association & ors. reported in (1994) 2 Officers Association & ors. reported in (1994) 2 SCC 204 SCC 204 SCC 204. In para-18 of the judgment the Apex Court observed that the mode of appointment of lawyers for the public bodies could be either by an open invitation to the lawyers to compete for the post or by inviting the best persons available although they may not have applied for the post. Thereafter the Court observed "Whatever the method adopted, it must be shown that the search for the meritorious was undertaken and the appointments were made only on the basis of the merit and not for any other consideration. " 7. The Public Prosecutors are holders of public offices and they have a public duty to perform. Thus, a public element is involved -12- therein. In the case of Mundrika Prasad Singh vs. Mundrika Prasad Singh vs. Mundrika Prasad Singh vs. State of Bihar reported in (1979) 4 SCC 701 State of Bihar reported in (1979) 4 SCC 701 State of Bihar reported in (1979) 4 SCC 701, the nature of appointment of Government Pleaders came up for consideration and it was held that the office of a Government Pleader, as defined under Section 2(7) of the Code of Civil Procedure, is a public office. In para-15 of that judgment, the Apex Court referred with approval to a judgment of a Division Bench of Madras High Court in the case of Ramachandran vs. Alagiriswami reported in AIR Ramachandran vs. Alagiriswami reported in AIR Ramachandran vs. Alagiriswami reported in AIR 1961 Madras 450 1961 Madras 450 1961 Madras 450 and then observed as follows:- " ... A Government Pleader is more than an advocate for a litigant. He holds a public office. We recall with approval the observations a Division Bench of the Madras High Court made in Ramchandran v. Alagiriswami and regard the view there, expressed in the Bihar set up. ... the duties of the Government Pleader, Madras are duties of a public nature. Besides, as already explained the public are genuinely concerned with the manner in which Government Pleader discharges his duties because, if he handles his cases badly, they have ultimately to foot the -13- bill. ... I consider that the most useful test to be applied to determine the question is that laid down by Erle, J. in (1851) 17 QB 149. The three criteria are, source of the office, the tenure and the duties. I have applied that test and I am of opinion that the conclusion that the office is a public office is irresistible. " Similarly in the case of Mukul Dalal vs. Union of Mukul Dalal vs. Union of Mukul Dalal vs. Union of India reported in (1988) 3 SCC 144 India reported in (1988) 3 SCC 144 India reported in (1988) 3 SCC 144 it was observed by the Apex Court in paras 6 and 9 thereof that the office of the public prosecutor is a public office and that the primacy given to the Public Prosecutor under the scheme of Cr.P.C. has a social purpose. 8. The above observations in Mundrika Prasad Singh’s case (supra) (per Krishna Iyer, J.) were quoted with approval in the case of Kumari Kumari Kumari Shrilekha Vidyarthi & ors. vs. State of U.P. & Shrilekha Vidyarthi & ors. vs. State of U.P. & Shrilekha Vidyarthi & ors. vs. State of U.P. & ors. reported in (1991) 1 SCC 212 ors. reported in (1991) 1 SCC 212 ors. reported in (1991) 1 SCC 212. The Government of U.P. had terminated the appointment of all Government Pleaders (Civil, Criminal and Revenue) in all the districts of the State -14- sometimes in February 1990 and that decision was under challenge in Shrilekha Vidyarthi’s case (supra). Thus, importance of the office of the Public Prosecutor and that it is a public office has come to be laid down in judgments after judgments. It is in this background that we have to look to the provisions contained in Section 23 of Cr.P.C. 9. In Mundrika Prasad Singh’s case (supra), the Government Pleader for the District of Patna had challenged the Government’s directives to make over the land acquisition matters to one of the Assistant Government Pleaders. The petition was dismissed by the Patna High Court and so was the Special Leave Petition by the Apex Court. However, while dismissing the SLP the Apex Court noted with approval that the Government of Bihar was appointing the Government lawyers after consultation with the District Judge. In Para-14 the Court observed as follows:- "14. It is heartening to notice that the It is heartening to notice that the It is heartening to notice that the Bihar Government appoints these lawyers Bihar Government appoints these lawyers Bihar Government appoints these lawyers after consultation with the District after consultation with the District after consultation with the District Judge. It is in the best interest of the Judge. It is in the best interest of the Judge. It is in the best interest of the State that it should engage competent State that it should engage competent State that it should engage competent -15- lawyers lawyers lawyers without hunting for political partisans regardless of capability. Public offices - and Government Pleadership is one - shall not succumb to Tammany Hall or subtler spoils system, if purity in public office is a desideratum. After all, the State is expected to fight and win its cases and sheer patronage is misuse of power. One effective method of One effective method of One effective method of achieving this object is to act on the achieving this object is to act on the achieving this object is to act on the advice of the District Judge regarding the advice of the District Judge regarding the advice of the District Judge regarding the choice of Government Pleaders. " choice of Government Pleaders. " choice of Government Pleaders. " (Emphasis supplied) 10. The judgment of the Apex Court in the case of Harpal Singh Chauhan & ors. vs. State of U.P. Harpal Singh Chauhan & ors. vs. State of U.P. Harpal Singh Chauhan & ors. vs. State of U.P. reported in (1993) 3 SCC 552 reported in (1993) 3 SCC 552 reported in (1993) 3 SCC 552 is quite instructive for our purpose. In that matter, the appellants were working as Public Prosecutors in the District of Moradabad, U.P. The District Judge had recommended their extension but the District Magistrate, after receiving recommendation of the District Judge, did not recommend those names saying that on an inquiry at his level, their reputation, professional work, behaviour and conduct was not found in accordance with public interest. The State Government rejected the -16- extension. The State Government had relied upon the provisions of U.P. Government Legal Remembrancer’s Manual which contains the detailed provisions with regard to initial appointment, extension and renewal of Law Officers. The Apex Court held that the procedure prescribed in the Manual to the extent it is not in conflict with the provisions of Section 24 shall be deemed to be supplementing the statutory provisions. The Court further held that the procedure prescribed under Section 24 was not followed by the District Magistrate and the records could not show that any panel as required by Section 24(4) was prepared by the District Magistrate in consultation with the District and Sessions Judge. In paras 18 and 19, the Court held that there was patent infraction of the statutory provisions and that there was no effective or real consultation between the Sessions Judge and the District Magistrate. The SLP was, therefore, allowed and the District Magistrate was directed to perform his duty in accordance with Section 24 of the Cr.P.C. What the Apex Court has observed in para-11 is instructive for our purpose which reads as follows:- " 11. The Code prescribes the procedure for appointment of Public Prosecutor and -17- Additional Public Prosecutor, for the High Court and the District Courts by the State Government. The framers of the Code, were conscious of the fact, that the Public Prosecutor and the Additional Public Prosecutor have an important role, while prosecuting, on behalf of the State, accused person, who are alleged to have committed one or the other offence. Because of that, provisions have been made for their selection in the Code. It is It is It is for the Sessions Judge to assess the merit for the Sessions Judge to assess the merit for the Sessions Judge to assess the merit and professional conduct of the persons and professional conduct of the persons and professional conduct of the persons recommended for such appointments and the recommended for such appointments and the recommended for such appointments and the District Magistrate to express his opinion District Magistrate to express his opinion District Magistrate to express his opinion on the suitability of persons so on the suitability of persons so on the suitability of persons so recommended, from the administrative point recommended, from the administrative point recommended, from the administrative point of view. of view. of view. Sub-section (5) of Section 24 provides that no person shall be appointed by the State Government as the Public Prosecutor or as an Additional Public Prosecutor "unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4)". The The The aforesaid section requires an effective aforesaid section requires an effective aforesaid section requires an effective and real consultation between the Sessions and real consultation between the Sessions and real consultation between the Sessions Judge and the District Magistrate, about Judge and the District Magistrate, about Judge and the District Magistrate, about -18- the merit and suitability of person to be the merit and suitability of person to be the merit and suitability of person to be appointed as Public Prosecutor or as an appointed as Public Prosecutor or as an appointed as Public Prosecutor or as an Additional Public Prosecutor. That is why Additional Public Prosecutor. That is why Additional Public Prosecutor. That is why it requires, a panel of names of persons, it requires, a panel of names of persons, it requires, a panel of names of persons, to be prepared by the District Magistrate to be prepared by the District Magistrate to be prepared by the District Magistrate in consultation with the Sessions Judge. in consultation with the Sessions Judge. in consultation with the Sessions Judge. The same is the position so far the Manual is concerned. It enumerates in detail, how for purpose of initial appointment, extension or renewal, the District Judge who is also the Sessions Judge, is to give his estimate of the quality of the work of the Counsel from the judicial standpoint and the District Officer i.e. the District Magistrate is to report about the suitability of such person, from administrative point of view. " (Emphasis supplied) 11. Then we come to the judgment in the case of State of U.P. & anr. vs. Johri Mal reported State of U.P. & anr. vs. Johri Mal reported State of U.P. & anr. vs. Johri Mal reported in (2004) 4 SCC 714 in (2004) 4 SCC 714 in (2004) 4 SCC 714. In this matter, the respondent who was working as a District Government Counsel (Criminal) at Merat in U.P. was declined renewal. In a writ petition filed before the Allahabad High Court, he contended that the denial was contrary to the recommendation of -19- the District Judge and District Magistrate. The Government of U.P. failed to file a reply and the Allahabad High Court allowed the petition. In the SLP, it was pointed out to the Apex Court that the facts were to the contrary and that such a recommendation had not been made by the District Judge. The Apex Court allowed the appeal in view of these facts but what it observed on various legal aspects is material for our purpose. It is relevant to note that by the time this matter came to be decided, the State of U.P. had amended Section 24 of Cr.P.C. and deleted the requirement to consult the High Court in appointment of Public Prosecutors for the High Court as contained in sub-section (1). The State of U.P. deleted sub-sections (4), (5) and (6) altogether with effect from 16.2.1991. Thus, the renewal of term of District Government Counsel was to be governed by the Legal Remembrancer’s Manual.