IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11722 of 2011 Kritya Nand Biswas, Public Prosecutor Araria S/O Late Jimsi Biswas R/O M/H Shivpuri, Road No. 9, P.S. Araria Town, P.O., S.D. and Distt.-Araria. . . . . . Petitioner. Versus 1. The State of Bihar through Chief Secretary. 2. The Chief Secretary, Govt. of Bihar, Old Secretariat, Patna. 3. The District Magistrate, Araria, Bihar. 4. The Law Secretary, Govt. of Bihar, Deptt. of Law, Old Secretariat, Patna. 5. Sri Lakshmi Narayan Yadav, Senior Advocate Cum Addl. Public Prosecutor, Araria Civil Court, Araria. . . . . Respondents. ---------------------------------- 7/ 30.09.2011 In the instant writ application, the petitioner prays for quashing Memo no.600/Vidhi-Araria dated 03.06.2011, whereby the Collector, Araria has appointed respondent no.5 (Sri Lakshmi Narayan Yadav) to discharge function of Ad-hoc Public Prosecutor, Araria, which is in violation of Provisions of Section 24 of the Criminal Procedure Code. The petitioner was appointed as incharge Public Prosecutor of Araria District vide letter dated 03.03.2008 of State Government. The petitioner’s appointment was confirmed retrospectively vide letter dated 04.01.2010 of State Government with effect from the date of his joining. A copy of letter dated 04.01.2010 is annexed as Annexure-1 to this application. The petitioner submits that he was discharging his responsibility without fear and favour to the best of his ability. The petitioner submits that the District Magistrate, respondent no.3, became annoyed, as he had made complaints against him to State Government. The petitioner in his letter dated 19.04.2010 addressed to the Chief Secretary, Government of Bihar drew his attention to the 2 various acts of omissions and commissions of the District Magistrate and an explanation was asked vide letter dated 26.11.2009 and 20.11.2009 (Annexures- 4 Series). The Advocate General also asked Law Secretary to look into the complaints against the Collector. The District Bar Association also in its letter dated 06.01.2011 requested the Hon’ble the Chief Minister to allow the petitioner to function as Public Prosecutor. On 05.01.2011, the Additional Secretary, Department of Law, requested the District Magistrate, Araria to send names of Assistant Public Prosecutors / Lawyers in consultation with the District Judge, Purnea for appointment of Public Prosecutor. The petitioner submits that instead of sending a panel of names, the District Magistrate, Araria in utter violation of Section 24 of Cr.P.C. appointed one Laxmi Narayan, Advocate to discharge function of Public Prosecutor vide Memo no.600/Vidhi-Araria dated 03.06.2011, which is impugned in the instant writ application. Respondent no.5 appeared suo motu in the case. He submits that the petitioner was appointed as Public Prosecutor for a fixed term of three years from 07.03.2008 to 07.03.2011. Reference was drawn to letter dated 04.01.2010 of Law Secretary, Government of Bihar, contained in Annexure-1. Thus on 07.03.2011, the term of petitioner came to an end. The respondent submits that the petitioner has no locus or a right to cling to the post after expiry of his tenure. In such circumstances, the District Magistrate in consultation with the District & District Judge, Purnia appointed respondent no.5, being the senior most A.P.P. to discharge the function of Public Prosecutor vide 3 Memo no. 600/Vidhi-Araria dated 03.06.2011. Learned counsel also submits that the appointment of new Public Prosecutor is in process and in compliance of Memo no.73 dated 05.01.2011 of the Law Department, the District Magistrate, Araria after deliberation with District Judge, Purnea has prepared a panel of 11 advocates, contained in letter dated 09.04.2011 appended as Annexure-A to the counter affidavit and has sought his response and recommendation. Learned counsel submits that name of respondent no.5 figures in the panel. However, the name of petitioner does not find place in the panel. He submits that he has already assumed charge of Public Prosecutor, Araria. He next submits that the District Magistrate has communicated a copy of the order to the Government by which he has temporarily appointed respondent no.5 to discharge the function of Public Prosecutor to the Government. The respondent no.5 submits that allegation against the petitioner is also pending consideration before Lokayukata. A counter affidavit has been filed on behalf of Law Secretary (respondent no.4). In paragraph 11 it has been stated that the District Magistrate, Araria was requested to send a panel of 11 eligible advocates in consultation with District & Sessions Judge, Purnea vide letter dated 05.01.2011 for consideration of appointment to the post of Public Prosecutor, as the term of the present incumbent (petitioner) was coming to an end on 07.03.2011. Furthermore, the Government has even sent reminders on 09.09.2011 to the District Magistrate in this regard, with an object to obviate adhochism in the appointment of the Public Prosecutor. I am not able to appreciate as to why the 4 panel has not been sent to the Government inspite of letter dated 05.01.2011. The petitioner submits that neither the Cr.P.C. nor the Bihar Practice and Procedure Manual confer power on the District Magistrate to appoint a person even temporarily to discharge function of the Public Prosecutor. He submits that it is the Government which is vested with the power to appoint Public Prosecutor or Additional Public Prosecutor under Section 24 of Cr.P.C. The District Magistrate is one of the recommending authorities and his power is limited to preparation of a panel of eligible persons for appointment to the post of Public Prosecutor / Additional Public Prosecutor. Even as per Rule 139 of the Bihar Practice and Procedure Manual, the Collector is only authorized to fill up temporary vacancy of Government Pleader in consultation with the District & Sessions Judge. He contends that the Bihar Practice and Procedure Manual does not confer any such power of temporary appointment in respect of Public Prosecutor. Counsel for the State submits that the post of Public Prosecutor would be filled up as soon as the recommendations are received by the Law Department in accordance with Section 24 of Cr.P.C. I have heard the learned counsel for the petitioner, State as well as respondent no.5. Section 24(4) confers power on the State Government to appoint Public Prosecutor or one or many Additional Public Prosecutor from the panel of names prepared by District Magistrate in consultation with the District Judge. As per Section 24 (5), the State Government cannot appoint any one as Public 5 Prosecutor or Additional Public Prosecutor, whose name do not figure in the panel prepared by District Magistrate in consultation with the District Judge of the district. It would thus appear that a District Magistrate is not an appointing authority of Public Prosecutor or Additional Public Prosecutor but he is only a recommending authority, who prepares a panel in consultation with the District Judge for consideration of Government for appointment of Public Prosecutor or Additional Public Prosecutor. The issue is whether a Public Prosecutor, who has been appointed by the State Government, would continue to function so, despite completion of his tenure till government appoints another Public Prosecutor in his place. The other issue would be whether the District Magistrate would be competent to make stop gap arrangement pending finalization of the Public Prosecutor under Section 24 of the Cr.P.C. Strictly speaking the answer is in negative in both the circumstances. A District Magistrate is not authorized to make appointment of a Public Prosecutor to discharge the function of Public Prosecutor even on temporary basis till finalization of the name by the Government. Even Rule 139 of Bihar Practice and Procedure Manual confers power on the District Magistrate to temporarily appoint only a Government Pleader in cases of temporary vacancy in consultation with the District Judge of the district. No such provision exists for appointment of Public Prosecutor even on temporary basis by the District Magistrate. 6 In the instant case, the tenure of the petitioner had come to an end in March, 2011. His name does not figure in the list of the panel sent by District Magistrate to District Judge, Purnea for his consideration. The Government till 9th September 2011, has not received a panel of names for consideration of appointment of Public Prosecutor as required under Section 24 (4) of the Code. This reflects a sad state of affairs. A prompt response to Government letters’ of January 2011, and 07.05.2011 would have obviated the impasse of decades old practice of allowing the outgoing Public Prosecutor to continue till a successor is appointed by the Government. Instead, the District Magistrate has for some reasons substituted respondent no.5 to act as Public Prosecutor. One Adhocism has been thus replaced by another stop gap arrangement. Even, if District Magistrate was not satisfied with working of the petitioner, he ought to have written to the Government for necessary orders. One option would be to quash the ad-hoc stop gap arrangement made by respondent no.3. But the court is conscious that if this temporary arrangement is quashed, then there would be no Public Prosecutor to oppose bail applications and the briefs on behalf of Government in important cases would go unrepresented. The sufferer in the circumstance would be justice and dispensation of justice the foremost. The State assures that the Government would be making regular appointment as soon as the panel of names is received under Section 24 of Cr.P.C. In such circumstances, for reasons aforesaid, this Court is not interfering with the stop gap arrangement where by the District Magistrate, Araria in consultation with District & 7 Sessions Judge appointed respondent no.5, the senior most Additional Public Prosecutor from the panel prepared to perform the function of Public Prosecutor, pending regular appointment. With the aforesaid direction, this application is disposed of. Uday/ (Samarendra Pratap Singh, J.)