Andhra HC (Pre-Telangana)
P.N.S. Prakash vs The Secretary To Govt. Of A.P. ... on 15 February, 2013
Author: Ramesh Ranganathan
Bench: Ramesh Ranganathan
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.6347 of 2012 15-02-2013 P.N.S. Prakash....Petitioner The Secretary to Govt. of A.P. Legislative Affairs & Justice, Law Department, Secretariat Buildings, Hyderabad and five others....Respondents Counsel for the petitioner: Sri Gade Venkateswara Rao Counsel for respondents : G.P. for Home Sri K. Ramamohan Mahadeva <GIST: >HEAD NOTE: ?Citations: 1) (2011) 4 SCC 1 2) AIR 1970 Madras 63 3) (1951) 342 US 98 4) (2003) 4 SCC 579 5) (1988) 4 SCC 59 6) (1996) 2 Crimes 358 7) (1964) 3 SCR 397: AIR 1965 SC 328 8) 1986 CriLJ 383 9) AIR 1983 SC 194 10) AIR 2005 Bom.431 11) (1995 CriLJ 3143 12) AIR 1967 SC 295 13) (1977) 1 SCC 133 14) (2001) 3 SCC 646 15) (1990(4) SCC 356 16) (2007(2) SCJ 146 17) (AIR 1969 SC 707 18) 2008 (2) ALT 429 19) 1994(1) PLJR 565 (DB 20) (1993) 3 SCC 552 21) (1989) 4 SCC 318 22) (2003) 3 SCC 321 23) AIR 1962 SC 386 24) AIR 1967 SC 1910 25) Judgment in W.P.No.15548 of 2008 dated 30.7.2008 26) (1997(2) ALD (Cri.) 502 (SC) 27) AIR 1968 117 28) 2004 (2) ALD Cri 935) (SC 29) (1985) 2 SCC 537 30) 1996 (4) ALT 123 (DB 31) (2009) 7 SCC 1 32) AIR 1967 SC 1458 ORDER:
The petitioner, a practicing advocate in Punganur town of Chittoor District, has filed this Writ Petition questioning the action of respondent Nos.1 to 5 in appointing the sixth respondent, vide G.O.Rt. No.330, Law (LA & J- Home-Courts. A1) Department dated 15.02.2012, as an Additional Public Prosecutor, without verifying his antecedents and social status, as arbitrary and illegal. He seeks a direction from this Court to set aside the said G.O; and to direct respondent Nos.3 to 5 to take appropriate action against the sixth respondent in suppressing his antecedents while submitting his application for the said post. The Writ Petition was filed on 05.03.2012, and came up for admission on 09.03.2012. Notice before admission was ordered on 26.04.2012, and the petitioner was permitted to take out notice by personal service on the sixth respondent.
Facts, in brief, are that the District Collector, Chittoor, vide letter dated 07.09.2011, requested the District & Sessions Judge, Chittoor to forward a panel of names for appointment as an Additional Public Prosecutor. The District Judge, vide proceedings dated 15.09.2011, requested the Assistant Sessions Judge, Punganur to submit a panel of five Advocates for appointment to the said post. The Assistant Sessions Judge, Punganur issued circular dated 20.09.2011 requesting the President and members of the Bar Association, Punganur to furnish their bio-data and certificates. In his bio-data submitted on 22.09.2011, the sixth respondent did not state that any criminal complaint/case was pending against him. The Assistant Sessions Judge, Punganur, vide letter dated 23.09.2011, forwarded a panel of five names to the District Judge, Chittoor who, vide letter dated 14.10.2011, forwarded the said panel, along with the bio-data of the advocate-panelists, to the District Collector. The Learned District Judge, in his proceedings dated 14.10.2011, records that considering the qualification, age, social status, standing at the Bar as an Advocate, nature of practice, the number of sessions cases conducted, efficiency, reliability, quality of advocacy, general reputation and personality, he had furnished a panel of five names of Advocates with their respective bio-data in the order of merit; and no woman and scheduled tribe candidates were available. The sixth respondent's name is shown at serial No.5 therein. Along with the said letter the signed bio-data, of each of the five panelists, was enclosed. The District Collector, vide letter dated 20.10.2011, called for a report from the Superintendent of Police, Chittoor who, vide proceedings dated 10.11.2011, submitted his report to the District Collector after verifying the antecedents of the advocates in the panel recommended by the District and Sessions Judge. The letter of the Superintendent of Police, Chittoor, to the District Collector, dated 10.11.2011 records, among others, regarding the sixth respondent that:-
"he is having good reputation in the public and with other advocates as well as court staff and police officials. He was appointed as Standing Counsel for Punganur Municipality from 30.11.2005 to 2008. He has not come to any adverse notice, as seen from the records of concerned police station and District Special Branch Office, Chittoor".
The District Collector, vide proceedings dated 25.11.2011, sent his proposals to the government requesting that any one of the advocates in the panel be appointed as the Additional Public Prosecutor. While forwarding the names of the five Advocates, including the sixth respondent, the District Collector extracted the contents of the antecedent reports, of all the five Advocates including the sixth respondent, in the said letter dated 25.11.2011. The report of the District and Sessions Judge, Chittoor; the antecedent verification report of the Superintendent of Police, Chittoor; and the bio-data of each of the advocates in the panel were also forwarded along with the said letter. Thereafter the first respondent, in the exercise of its powers under Section 24(3) Cr.P.C read with G.O.Ms. No.187, dated 06.12.2000, appointed the sixth respondent as the Additional Public Prosecutor for the Court of the Assistant Sessions Judge, Punganur by G.O.Rt. No.330 dated 15.2.2012. Neither the District Collector when he sent his proposals to the Government, nor the Government when it appointed the sixth respondent as the Additional Public Prosecutor, were made aware that FIR No.66 of 2011 was registered in the Panjani police station, among others, against the sixth respondent and the final report, under Section 173(2) Cr.P.C, had not been filed in the Court of the Judicial First Class Magistrate, Punganur by then.
The case diary placed this Court, with respect to FIR No.66 of 2011, shows that the complainant had submitted a complaint to the Judicial Magistrate of First Class, Punganur on 10.11.2010 stating that, though she had lodged a complaint against the accused before the Panjani police station, the concerned police had not taken steps to register the case; and, hence, she was constrained to file a complaint before the Court as the accused had committed offences punishable under Section 147, 148, 354, 307 and 506 read with 34 IPC. The complainant requested the Court to take the case on file, enquire thereinto and punish the accused according to law, or forward the case to the Panjani police station for necessary action.
The docket proceedings of the Court of the Judicial Magistrate of First Class, Punganur, (which forms part of the case diary), discloses that the complainant was present in the Court on 10.11.2010, and the matter was adjourned for hearing to 02.12.2010; though the complainant was present in the Court on 02.12.2010, the case was adjourned to 07.01.2011 at the request of her Counsel; while the complainant was again present on 07.01.2011, the presiding officer was on training and, as such, the case was posted to 07.03.2011; the case again suffered adjournment for the same reason from 07.03.2011 to 01.04.2011; though the complainant was again present in the Court on 01.04.2011, the case was adjourned to 15.04.2011 for recording her sworn statement; the complainant was present in the Court also on 15.4.2011 but the case was posted to 10.05.2011 at the request of her Counsel; as the Presiding Officer was on vacation on 10.5.2011, the case was adjourned to 02.06.2011 on which date the sworn statement of the complainant was recorded. On a perusal of the complaint, the Learned Magistrate endorsed on the docket sheet that the allegations made in the complaint, prima facie, attracted the ingredients punishable under Sections 354, 448 read with 34 IPC; and hence the complaint was being forwarded, to the Panjani Police Station, under Section 156(3) Cr.P.C for investigation and report. It is, thereafter, that FIR No.66 of 2011 was registered on the file of the Panjani Police Station on 07.06.2011 for offences under Sections 448, 147, 148, 323, 354, 307, 506 read with Section 34 IPC.
The sixth respondent herein is accused No.3 in FIR No.66 of 2011. The complainant in FIR No.66 of 2011, a lady aged 45 years residing at Rayalapeta Village of Panjani Mandal, Chittoor District, alleged in her complaint that the first accused came to her house and caught hold of her daughter's hand with a view to outrage her modesty; her daughter cried out aloud, on hearing which the complainant came to the spot; on seeing her, the first accused escaped from the scene of the offence; on observing that the complainant's son was coming towards the house, the second accused shouted and chased him with a broomstick; on hearing the voice of the second accused, accused Nos.3 to 7 armed with deadly weapons came to the house of the complainant, beat her son and caused injuries to his ear; on the same day, at about 5.00 PM, all the accused armed with sticks, stones and iron rods came to her house; on seeing them the complainant and her family members went inside, and bolted the house from inside, out of fear; they requested the accused not to beat them despite which all the accused pushed the door open, and beat the complainant, her husband, her daughters and her sons with sticks, stones and iron rods; they were also kicked and beaten with hands causing injuries; the accused also abused the complainant in filthy language, warned her to leave the village, and threatened her and her family members with dire consequences if they stayed in the house; the complainant lodged a complaint against the accused before the Panjani Police Station, but no action was taken; and, hence, she was filing a private complaint under Section 200 Cr.P.C before the Judicial Magistrate of First Class, Punganur. According to the petitioner it was in everyone's knowledge that the sixth respondent, also a practicing Advocate in Punganur town, was involved in Crime No.66 of 2011 dated 07.06.2011 for offences under Sections 448, 147, 148, 323, 354, 307, 506 read with 34 IPC on the file of Panjani Police Station as the third accused, despite which his name was recommended by respondent Nos.3 and 4 to the first respondent, for his appointment as an Additional Public Prosecutor in the Court of the Assistant Sessions Judge, Punganur, without taking into consideration his antecedents and his social status; based on the said recommendation, the first respondent had appointed the sixth respondent as the Additional Public Prosecutor to the said Court for a period of three years; the antecedents of the sixth respondent disqualified him from appointment; and the petitioner has been discriminated against in selection to the said post, though he was eligible and his antecedents were without blemish.
In the counter affidavit dated 19.12.2012, filed on behalf of the first respondent, it is stated that the Superintendent of Police, Chittoor had submitted a report stating that the sixth respondent had not come to any adverse notice as seen from the records of concerned Police Station and District Special Branch Officer, Chittoor; the first respondent had no knowledge, as per the record, regarding registration of the crime against the sixth respondent; the sixth respondent had not disclosed registration of any crime against him; G.O.Ms. No.187 is silent on the aspect of pending criminal cases; the Government relies upon police verification reports on the panelists, and selection of those advocates who are not involved in any criminal cases; the impugned G.O. is not illegal as the appointment was made on the basis of the record available with the Government; the Government is empowered to appoint Additional Public Prosecutors only from the panel of names recommended by the District Magistrate who has to prepare the panel in consultation with the District and Sessions Judge; the Government cannot deviate from the panel of names recommended by the Collector and District Magistrate; and, in case the sixth respondent had suppressed the criminal cases, suitable action would be initiated by the Government as per law.
The third respondent-District Collector, in his counter affidavit dated 18.12.2012, would submit that, on the basis of the report of the Superintendent of Police, Chittoor dated 10.11.2011, their Office had, vide proceedings dated 25.11.2011, sent the proposals to the Government, requesting that any one of the advocates in the panel be appointed as the Additional Public Prosecutor; the antecedents of the sixth respondent had been verified by the Superintendent of Police, Chittoor District at the ground level, and nothing adverse against the sixth respondent had come to notice; and later it came to light, after enquiring with the Superintendent of Police, Chittoor, that the sixth respondent figured as an accused in Crime No.66 of 2011 of Panjani Police Station. In his counter affidavit the Superintendent of Police, Chittoor (fifth respondent) would state that the District Collector, Chittoor had requested him, vide letter dated 20.10.2011, to send the antecedents of the panel advocates, including the sixth respondent; an enquiry was caused thereinto; he sent a detailed report, vide letter dated 10.11.2011, to the District Collector; the antecedents of the sixth respondent had been verified at the ground level, and nothing adverse had come to notice; the investigation in Crime No.66 of 2011 disclosed it to be a false case; the Sub-Divisional Police Officer, Palamaner had, by proceedings dated 15.07.2011, referred the case as false; notice was served on the complainant on 26.08.2012; and, as nothing adverse had come to his notice, nothing had been reported in relation to the antecedents of the sixth respondent to the District Collector, Chittoor.
In his additional affidavit dated 21.01.2013, the fifth respondent states that no evidence was adduced in support of the alleged offences mentioned in the FIR, and the contents of the complaint were proved not true; the investigating officer had submitted proposals on 07.07.2011 to the Sub-Divisional Officer, Palamaner Division to refer the case as false; subsequently, the Sub-Divisional Officer, Palamaner had accorded permission on 15.07.2011 for referring the case as false; his enquires revealed that Sri S. Nagaraja, the then Sub-Inspector of Police, Panjani Police Station, who investigated the case, had submitted proposals to refer the case as false, after receipt of the referral proceedings from the Sub-Divisional Officer, Palamaner Division on 15.07.2011; he served the referred case summons (RCS) notice on the complainant Smt. K.Krishnamma; the said RCS was protested by the complainant in the court of the Judicial Magistrate of First Class, Punganur on 13.12.2011; on perusal of the protest petition filed by the complainant, the Court had dismissed the petition on 22.08.2012, vide CFR No.5515 of 2011 of Crime No.66 of 2011 of Panjani Police Station; Sri S. Nagaraja the then Sub-Inspector of Police, after serving the RCS notice on the complainant, did not submit the final report in the Court of the Judicial Magistrate of First Class, Punganur till he was transferred on 16.10.2011 from the Panjani Police Station; he was therefore issued a charge memo vide proceedings dated 16.01.2013, and departmental proceedings would follow; Sri S. Nagaraja, who assumed charge as the Sub-Inspector of Police, Panjani Police Station on 23.10.2011, served the RCS notice on the complainant on 26.08.2012 but, however, did not submit the final report in the Court till 27.12.2012; the Sub-Inspector, being a probationer, was not well versed with the procedures, and had committed inordinate delay in submitting the final report to the Court; a charge memo was issued to him on 16.01.2013 followed by departmental proceedings; the fifth respondent had entrusted the task, of antecedent verification of the sixth respondent, to Sri A. Surender Reddy, Inspector of Police, formerly District Special Branch, Chittoor who, in turn, got it enquired through Sri G. Subramanyam, the then Sub-Inspector of Police, District Special Branch, Chittoor; and the field enquiry was caused by Sri K. Rasheed, PC-2442 of Punganur Police Station attached to the Special Branch, Punganur (who also did not specify about the pendency of FIR 66 of 2011 against the sixth respondent); based on the enquiry report submitted to him by the three police officers, the antecedent verification report was submitted by him to the District Collector; in view of the lapse, in not submitting factual information about the antecedents of the sixth respondent, Sri A. Surender Reddy, Inspector of Police, was issued charge memo dated 15.01.2013; G. Subramanyam, the Sub- Inspector of Police, was imposed punishment of postponement of increment for one year without effect on future increments and pension vide proceedings dated 19.01.2013, followed by departmental proceedings; Sri K. Rasheed, PC-2442 of Punganur Police Station, was suspended from service vide proceedings dated 15.01.2013, and departmental enquiry would follow thereupon; time and again instructions were issued by him to all the Station House Officers in the District to strictly follow procedure while conducting investigation into the cases, more particularly court referred cases; the investigating officers were instructed that, after completing the investigation and after obtaining permission from the competent authority, RCS notices should be served on the complainants, and final reports should be filed before the competent courts without any delay; inspite of repeated instructions the Sub-inspector of Police, Panjani Police Station, committed procedural lapses which were dealt with sternly by issuing a charge memo; the District Special Branch police personnel, who were duty bound to provide factual information, had failed to identify the pending case against the sixth respondent while causing antecedent verification for which they were penalized with suspension and charge memos; and necessary steps would be taken to avoid inordinate delay and procedural lapses in investigation of the cases. Along with the additional counter affidavit the proceedings, whereby action was taken against the officials concerned, are enclosed.
In his counter affidavit, the sixth respondent would deny his involvement as accused No.3 in Crime No.66 of 2011 of Panjani Police Station. He would submit that, after investigating into Crime No.66 of 2011, the Sub-Inspector of Police, Panjani Police Station had sent a requisition to the Sub-Divisional Officer, Palamner on 07.07.2011 for according permission to refer the case as false, and to submit a final report in the Court of the Judicial Magistrate of First Class, Punganur; as on the date of issuance of circular dated 20.9.2011, by the Assistant Sessions Judge, Punganur, no cases were pending against him; he never received any notices either from the Court or from the police officials intimating his involvement in the criminal case; and mere registration of a crime against him could not be the basis for holding that he was involved in a criminal case. He would deny the allegation that his name was recommended by respondent Nos.3 and 4 to the first respondent, for appointment as an Additional Public Prosecutor to the Court of Assistant Sessions Judge, Punganur, without taking into consideration his antecedents and social status. He would submit that the District Judge, Chittoor had forwarded his name taking into consideration his qualification and eligibility; it is only after considering the material available had the first respondent appointed him as the Additional Public Prosecutor for a period of three years vide G.O.Rt. No.330 dated 15.02.2012 which was communicated to him by the second respondent; he took charge on 17.02.2012 as the Additional Public Prosecutor, and was conducting cases; his appointment was made only after following the prescribed procedure; there is no illegality or irregularity in his appointment; and no offence had been committed by him as he was not convicted.
STATUTORY PROVISIONS AND EXECUTIVE INSTRUCTIONS - GOVERNING THE MODE AND MANNER OF APPOINTMENT OF PUBLIC PROSECUTORS/ADDITIONAL PUBLIC PROSECUTORS:
Before examining the rival submissions made by counsel on either side, it is useful to refer to the relevant statutory provisions, and the executive instructions, governing appointment to the posts of Public Prosecutor/Additional Public Prosecutor. Section 24 Cr.P.C. governs the manner of appointment to such posts both in the High Court and in each District of the State. Section 24(3) empowers the State Government to appoint a Public Prosecutor for every District, and also to appoint one or more Additional Public Prosecutors for the District. Section 24(4) stipulates that the District Magistrate (District Collector) shall, in consultation with the Sessions Judge (District Judge), prepare a panel of names of persons who are, in his opinion, fit to be appointed as Public Prosecutors and Additional Public Prosecutors for the District. Section 24 (5) prohibits the State Government from appointing any person as a 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). Section 24(7) stipulates that 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. Sub-section (9) stipulates that, for the purposes of sub-section (7) and (8), the period during which a person has been in practice as a pleader, or has rendered 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.
Instruction 2(iv), of the "Andhra Pradesh Law Officers (Appointment and Conditions of Service) Instructions, 2000" (notified in G.O.Ms. No.187 dated 06.12.2000), defines "Law Officer" to include a Public Prosecutor or Additional Public Prosecutor or a Special Public Prosecutor. Instruction 3 relates to appointment of Law Officers and, under sub-instruction (1) thereof, the Government shall appoint such number of Law Officers on behalf of the State, to conduct cases before various courts, as they may consider necessary. Instruction 5 relates to Appointment of Law Officers in the District Courts and, under sub-instruction (1) thereof, appointment of Law Officers in all Courts subordinate to the High Court shall be made on the basis of the recommendations of the District Collector concerned who shall ascertain the views of the concerned District and Sessions Judge before making the recommendations. Under sub-instruction (2) the District Collector shall prepare a panel of advocates well in advance before expiry of the term of the incumbents, and send the same to the Government for consideration. Sub-Instruction (4) stipulates that, on receipt of a panel sent by the District Collector under sub-instruction (1), the Government in the Law Department shall consider the same and appoint one among the panel as a Law Officer for a term prescribed under Instruction 8 or call for a fresh panel. Sub-Instruction (5) stipulates that the District Collector shall submit a fresh panel as called for, under sub-instruction (4), in the same manner for consideration. Instruction 6 relates to appointment of Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors and, thereunder, Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors shall be appointed as per the provisions of Section 24 of the Code of Criminal Procedure, 1973. Instruction 7 prescribes the guidelines for selection of Law Officers and, thereunder, the selection of candidates for appointment as Law Officers shall, as far as possible, be based primarily on merit and suitability; in making the selection, every endeavour should be made to provide equitable representation to members of the scheduled castes, the scheduled tribes and the backward classes in accordance with the ratio of 15%, 6% and 25% respectively; women shall be accorded reasonable representation in all categories; and when merit and suitability are equal, preference may be given to members of scheduled castes, scheduled tribes, backward classes and women.
JUDICIAL REVIEW OF THE EXERCISE OF DISCRETION IN THE APPOINTMENT OF PUBLIC PROSECUTORS/ ADDITIONAL PUBLIC PROSECUTORS - ITS SCOPE:
In preparing a panel of advocates the District Collector, and in appointing the Public Prosecutor/Additional Public Prosecutor the Government, exercise the discretion conferred on them under sub-sections (4) and (3) of Section 24 Cr.P.C respectively. In considering the validity of the challenge to the appointment of the 6th respondent as an Additional Public Prosecutor it is necessary, at the outset, to examine the scope of Judicial review of appointment to such statutory posts.
Judicial review is concerned with whether the incumbent possesses the qualifications prescribed for the appointment and the manner in which the appointment came to be made or whether the procedure adopted was fair, just and reasonable. While the Government is not accountable to the Courts for the choice made, it is accountable in respect of the legality of the decisions impugned under the judicial review jurisdiction. (Centre for PIL v. Union of India1). Appointment of a Public Prosecutor is an executive or administrative act exercised at the discretion of the Government. No absolute discretion is vested in the Government, as such appointments should be made only in accordance with the law; and the prescribed procedure, preceding the appointment, should be strictly adhered to. The discretion conferred on the Government in the matter is circumscribed by the Section, and it is within the four corners of the Section that the discretion must be exercised. (A. Mohambaram v. M.A. Jayavelu2). In a system governed by the rule of law, discretion, when conferred upon the Executive, must be confined within clearly defined limits. Decisions should be made by the application of known principles and rules. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (A. Mohambaram2). There is no such thing as absolute or untrammelled discretion, the nursery of despotic power, in a democracy based on the rule of law. Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler. Where discretion is absolute man has always suffered. (A. Mohambaram2; United States v. M. Wunderlich3). Exercise of discretionary administrative power will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. The authority must genuinely address itself to the matter before it. In the purported exercise of its discretion, it must act in good faith, must have regard to all relevant considerations, must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. (Indian Railway Construction Co. Ltd. v. Ajay Kumar4; State of U.P. v. Renusagar Power Co5; Professor de Smith in his classical work Judicial Review of Administrative Action, 4th Edn., at pp. 285-
87). If, in the discharge of a public duty, the authority exercising his discretion takes into account matters which the Courts consider improper for the guidance of his discretion, then the authority has not exercised that discretion in the eye of law. When considerations, extraneous to the suitability of a person for appointment, are taken into account in making an appointment, there is an abuse of discretionary power, and the exercise of power exceeds the bounds of authority. The other aspirants for the office would have been left out of consideration on totally irrelevant grounds. While the fitness of a person to an office may be solely within the discretion of the appointing authority, the discretion must be exercised bona fide. (A. Mohambaram2; Maxwell on the Interpretation of Statutes, llth Edition, page 118). While Courts will not interfere with the choice of an individual with reference to an appointment made in the due exercise of its discretion by the Government, without shutting out of consideration the claims of others for the post, Courts will certainly stand guard, against flagrant abuse of powers on the simple and sound principle that the Constitution 'cannot have intended powers to be abused beyond what might be called the inevitable area where opinions may legitimately differ'. (A. Mohambaram2).
ROLE OF THE PUBLIC PROSECUTOR IN THE CRIMINAL JUSTICE SYSTEM:
The Criminal law enforcement system investigates crimes and prosecutes offenders. It must also protect valued rights and freedoms, and convict only the guilty. The prosecutor must recognize these different and competing interests. He should strike a fair balance between the competing interests of convicting the guilty, protecting citizens' rights and freedoms and protecting the public from criminals. Prosecutors should ensure that prosecutions are conducted in a diligent, competent and fair manner. The importance of the office of the Public Prosecutor cannot be over-emphasized. The Public Prosecutor must be a person of high merit, fair and objective, because upon him depends to a large extent the administration of criminal justice. The office of the Public Prosecutor is a public office and the incumbent has to discharge statutory duties. The person appointed as Public Prosecutor must, therefore, be one who is not only able and efficient, but also enjoys a reputation and prestige which satisfy his appointment as a Public Prosecutor. (Reyasat Ali Khan v. State of Bihar6). The duty of the prosecutor is to assist the Court in reaching a proper conclusion in regard to the case which is brought before it for trial. (Darya Singh v. State of Punjab7). The prosecutor has to be fair in the presentation of the prosecution case. He must not suppress or keep back from the court evidence relevant to the determination of the guilt or innocence of the accused. He must present the complete picture, and not a one sided picture. He must not be partial to the prosecution or to the accused. He has to be fair to both sides in the presentation of the case. (Prabhu Dayal Gupta v. State8).
INSTITUTIONAL INTEGRITY OF THE OFFICE OF PUBLIC PROSECUTOR:
Is a person, against whom a criminal complaint had been lodged and in which a final report under Section 173 Cr.P.C. had not been filed by the Investigation agency before the competent Court when he was considered for appointment as an Additional Public Prosecutor, "fit" for appointment to the said post? This is an issue which requires serious thought, as the prosecution of an offender is the duty of the executive which is arrived at through the institution of the Public Prosecutor. The Public Prosecutor, who prosecutes the case on behalf of the State, is an officer of the Court and is responsible to it. (Sheonandan Paswan v. State of Bihar9). The institutional integrity of the institution of the Public Prosecutor should be kept in mind while recommending the name of the candidate. Appointment to the post of a Public Prosecutor must satisfy not only the eligibility criteria of the candidate, but also the decision-making process of the recommendation. The decision to recommend must be an informed decision keeping in mind the fact that the Public Prosecutor, as an institution, has to perform an important function in criminal justice administration. If a statutory authority, like the District Collector or the Sessions Judge, eschew relevant material having nexus to the object and purpose of Section 24 Cr.P.C, or take into account irrelevant circumstances, then their decision/recommendation would stand vitiated on the ground of arbitrariness. The authorities must take into consideration the question of institutional competence into account. If the selection would adversely affect institutional competence and functioning, then it is their duty not to appoint such a candidate. Institutional integrity should be the primary consideration while submitting proposals for appointment to the post of a Public Prosecutor. While exercising the powers conferred by the Section, the competent authority should consider what is good for the institution, and not what is good for the candidate. When institutional integrity is in question, the touchstone should be "public interest". Personal integrity is relevant, and has a co-relationship with institutional integrity. If a duty is cast under the Section to recommend the name of the selected candidates, the integrity of that decision-making process must ensure that the powers are exercised for the purposes, and in the manner, envisaged by the said Section, otherwise such recommendation will have no existence in the eye of the law. (Centre FOR PIL1).
MEANING OF THE EXPRESSION "FIT TO BE APPOINTED"
The expression "fit to be appointed", as used in Section 24(4) Cr.P.C, is distinct from, and is in addition to, the eligibility criterion stipulated in sub-section (7) of Section 24. While the eligibility criterion stipulated in Section 24(7) & (9), for being appointed as an Additional Public Prosecutor, is practice as an advocate for not less than seven years, (including service as a Public Prosecutor or Additional Public Prosecutor or Assistant Public Prosecutor), "fitness" for appointment to the said post is more than mere "eligibility" for, if fitness were to be construed as equivalent to eligibility, then the word "fit" used in sub-section (4) would be inapposite surplussage, as the eligibility criterion for appointment is stipulated in Section 24(7) and (9) Cr.P.C.
What does fitness mean? The word "fit" means befetting or meeting adequate standards. The New Oxford dictionary of English (Indian Edition) explains the word "fit" as of a person having the requisite skills to undertake something competently. The essential requirement of fitness, under Section 24(4) Cr.P.C, is that the person should be suitable for doing the particular work, which is different from his eligibility. (Mrs. Neelima Sadanand Vartak v. State of Maharashtra10). The District Magistrate is required to form an opinion that a person is fit to be appointed as an Additional Public Prosecutor before he prepares a panel of names of persons to be appointed to the said post. (Reyasat Ali Khan6).
FORMATION OF OPINION BY THE DISTRICT MAGISTRATE, REGARDING "FITNESS" OF PERSONS TO BE EMPANELLED, MUST BE BASED ON RELEVANT MATERIAL:
The scheme of Section 24 Cr.P.C. ensures the selection of an able Public Prosecutor by providing for a panel being prepared by the District Magistrate in consultation with the Sessions Judge, and limiting the choice of the State Government to Advocates whose names appear in the panel. In making his recommendation, in consultation with the District and Sessions Judge, the District Magistrate is expected to ensure that the names recommended by him are of persons who command respect and enjoy a reputation for their ability and industry. A Public Prosecutor or an Additional Public Prosecutor for a district is appointed on the recommendation of the District Magistrate, who must submit his proposal in consultation with the Sessions Judge. (Shankar Sinha vs State Of Bihar11). The post of Public Prosecutor/Additional Public Prosecutor is a statutory post, and they perform statutory functions. An informed decision must be taken by the authorities on the basis of a consideration of relevant material keeping in mind the purpose, object and policy of the Section. (Centre for PIL1).
The requirements of Section 24(4) Cr.P.C. are (1) the District Magistrate should consult the District Judge in preparing a panel of Advocates to be considered for appointment as a Public Prosecutor or an Additional Public Prosecutor; and (2) the panel should contain the names of only those persons who are, in the opinion of the District Magistrate, fit to be appointed as Public Prosecutors or Additional Public Prosecutors of the District. The District Magistrate is mandated to form an opinion that the persons, being included in the panel to be forwarded to the Government, are "fit" to be appointed as Public Prosecutors/Additional Public Prosecutors. The words "in the opinion of" do not always lead to the construction that the process of entertaining "the opinion" is an altogether subjective process not lending itself even to a limited scrutiny by the Court that such "opinion" was not formed on relevant facts or within the limits or the restraints of the statute. (Barium Chemicals Ltd. v. Company Law Board12). Even if an order, passed in exercise of the power under a statute, is passed in good faith, and with the best of intentions to further the purpose of the legislation which confers the power, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that, in forming it, it did not apply its mind to the relevant facts. (Barium Chemicals Ltd.12). In situations were administrative authorities have to form certain opinion before taking the action they are empowered to take, the formation of opinion is a subjective matter. Nevertheless, that opinion has to be based upon some relevant material in order to pass the test which Courts impose. That test basically is: Was the authority concerned acting within the scope of its powers or in the sphere where its opinion and discretion must be permitted to have full play? There might, however, be cases in which the power is exercised in such an obviously arbitrary or perverse fashion, without regard to the actual and undeniable facts, or, in other words, so unreasonably as to leave no doubt whatsoever in the mind of a Court that there has been an excess of power. There may also be cases where the mind of the authority concerned has not been applied at all, due to misunderstanding of the law or some other reason, to what was legally imperative for it to consider. (Narayan Govind Gavate v. State of Maharashtra13). In arriving at a decision on "reasonableness" the court must find out if the administrator has left out relevant factors or has taken into account irrelevant factors. The decision of the administrator must be within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must be bona fide. The decision can be one of many choices open to the authority. It is for that authority to decide upon the choice, and not for the Court to substitute its view. To characterize a decision of the administrator as "irrational" the Court has to hold, on material, that it is a decision "so outrageous" as to be in total defiance of logic or moral standards. (Ajay Kumar4).
In the formation of opinion regard must be had to the factors enumerated in the Section together with all other factors relevant for exercise of that power. Formation of opinion must be based on objective considerations. There must exist circumstances which, in the opinion of the Authority, suggest what has been set out in the Section. Existence of the circumstances mentioned in the Section is a condition precedent for formation of the required opinion and, if the existence of those conditions is challenged, Courts are entitled to examine whether those circumstances existed when the order was made. If it is shown that the circumstances did not exist, or that they were such that it is impossible for any one to form an opinion therefrom, the opinion can be challenged on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the section. (A.P. Bankers & Pawn Brokers' Assn. v. Municipal Corpn. of Hyderabad14; India Cement Ltd. v. Union of India15), Rajesh Kumar v. Dy. CIT16; Rohtas Industries Ltd v. S.D. Agarwal17; and M. Govinda Rao vs A.P. State Wakf Board18). The 'opinion', referred to in Section 24(4) Cr.P.C, must be free from bias or pressure or influence. The panel prepared, on the basis of the opinion of the authorities, must be considered statutory in nature. No deviation from the mandatory provision of Section 24 Cr.P.C. can be permitted. (Mohan Jee Upadhyay v. State of Bihar19; Reyasat Ali Khan6). Although power is vested in the District Magistrate, in subjective terms, judicial review is still permissible. (Harpal Singh Chauhan v State of U.P20). While the formation of opinion is, undoubtedly, that of the District Collector, and his satisfaction that a person is fit to be appointed is no doubt subjective, it is only if the formation of opinion is preceded by consideration of relevant material, and eschewing irrelevant material, can such an opinion be said to accord with the law. In the performance of his statutory duty, the District Magistrate must record his opinion regarding the fitness of the person recommended. In doing so, apart from consultation with the Sessions Judge, he is not to be influenced by extraneous considerations. Since the selection by the State Government is confined to the panel of names proposed by the District Magistrate, extraneous considerations, including political, are out of place. It is the independent opinion of the District Collector which must form the basis for his recommendation, and not the opinion of any other person, or an opinion procured from him under pressure or influence. (Reyasast Ali Khan6).
"FITNESS" TO BE DETERMINED BY THE DISTRICT MAGISTRATE ONLY IN CONSULTATION WITH THE DISTRICT & SESSIONS JUDGE:
As Sub-section (4) and sub-section (5) of Section 24 Cr.P.C. speak about preparation of a panel, out of which appointments against the posts of Prosecutor or Additional Public Prosecutor should be made, the Sessions Judge and the District Magistrate are required to consult each other; discuss the names of persons fit to be included in the panel; and include only such names in the panel. The expression "panel of names of persons" does not mean that some names are to be suggested by the Sessions Judge, and some comments are to be made in respect of those names by the District Magistrate, without proper consultation and discussion over such names. The statutory mandate ought to be complied with both in letter and spirit by the District Magistrate and the Sessions Judge. The quality of the Counsel's work has to be judged and assessed by the District and Sessions Judge. The District Magistrate is required to consider the suitability of such persons from the administrative point of view. (Harpal Singh Chauhan20). There must be effective and real consultation between the Sessions Judge and the District Magistrate and only then should a panel of names of persons be prepared. (Mrs. Neelima Sadanand Vartak10). Consultation with the Sessions Judge, under Section 24(4), is on the "fitness" of a person to be appointed as a Public Prosecutor. The Sessions Judge is required not to pick and choose those who satisfy the eligibility criteria of seven years practice as an advocate, but to ensure that the names of only those eligible advocates, who are "fit" to be appointed as Public Prosecutors/Additional Public Prosecutors, are included in the panel to be prepared after completion of the consultative process between him and the District Magistrate. The New Oxford dictionary of English (Indian Edition) defines "panel" to mean a small group of people brought together for a purpose. The exercise of preparing a "panel" involves short-listing the most meritorious candidates. (Mrs. Neelima Sadanand Vartak10). The Sessions Judge is required to identify the most meritorious candidates, from among those eligible, to be included in the panel for appointment to the post of Public Prosecutors/Additional Public Prosecutors. Even while ensuring the rule of reservation, wherever applicable, the Sessions Judge should identify the most meritorious advocates in each of the reserved categories. The factors which the District Judge may take into consideration, before satisfying himself that an eligible advocate is "fit" to be empanelled for being considered for appointment as a Public Prosecutor/Additional Public Prosecutor, would include the performance of the advocate at the bar, the volume and quality of his practice, the manner in which he conducts himself in Court, his integrity, a blemishless background, fairness of approach to cases presented by him before the Court etc. The aforesaid factors are merely illustrative and the Sessions Judge can also take into consideration any other factor relevant for determining the "fitness" of an eligible advocate to be appointed as the Additional Public Prosecutor. Extraneous factors, such as patronage - political or otherwise, holding elected office such as the President, Secretary or executive member of the Bar/Advocates Association etc are wholly irrelevant in determining "fitness", and should be eschewed.
"FITNESS" OF THE EMPANNELED ADVOCATES MUST ALSO BE EXAMINED BY THE GOVERNMENT BEFORE APPOINTING ONE OF THEM AS THE ADDITIONAL PUBLIC PROSECUTOR: The power of the State Government, to appoint an Additional Public Prosecutor in a District, circumscribed by Section 24(5) Cr.P.C., is that no person can be appointed to the said post unless his name appears in the panel of names prepared by the District Magistrate under Sub-section (4). It is only from the panel of names recommended by the District Magistrate, can the State Government appoint one of them to the post of Additional Public Prosecutor. Where it finds that any, or all, the empanelled advocates are not "fit" to be appointed as Public Prosecutor/Additional Public Prosecutor, it is open to the Government to either select one of the "fit" empanelled candidates or return the panel and call for a panel afresh. While the opinion of the Sessions Judge and the District Collector have great weight, their opinion is not conclusive. In those rare cases where the Government disagrees with the recommendation of the District Collector, decides to return the panel, and call for a panel afresh, it must record its reasons for doing so.
EXECUTIVE INSTRUCTIONS CAN ONLY SUPPLEMENT AND NOT SUPPLANT THE PROVISIONS OF A STATUTE:
The contention that pendency of a criminal cases is not a bar for appointment to the post of Additional Public Prosecutor, under G.O.Ms. No.187 dated 6.12.2000, is not tenable, as the said G.O. requires appointment, to the post of Public Prosecutors/Additional Public Prosecutors, to be made primarily on the basis of merit and suitability. "Pendency of criminal cases" would, undoubtedly, be one of the relevant factors to be taken into consideration while adjudging the suitability of the candidate for appointment to the said post. It does not stand to reason that a person with a criminal back ground should be appointed to a post which would require him to prosecute criminals on behalf of the State. Such a person can hardly be said to be suitable for appointment as a Public Prosecutor. Even otherwise the instructions, in G.O.Ms. No.187 dated 6.12.2000, do not have statutory force and can, at best, supplement the provisions of Section 24 Cr.P.C. Executive instructions can only supplement and not supplant the law, (Senior Supdt. of Post Offices v. Izhar Hussain21; St. Johns Teachers Training Institute v. Regional Director, NCTE22), and cannot be so framed or utilised as to override the provisions of law as it would, then, destroy the very basis of the rule of law and strike at the very root of orderly administration of law. (Mannalal Jain v. State of Assam23). If, however, the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. (Sant Ram v. State of Rajasthan24; M/s.Vijaya Vasava Motors v. The Assistant Commissioner (LTU), Eluru Division, Eluru25). ANTECEDENTS OF THE ADVOCATES IS A RELEVANT FACTOR TO BE TAKEN INTO CONSIDERATION WHILE PREPARING THE PANEL - EXERCISE OF ANTECEDENT VERIFICATION MUST BE CARRIED OUT WITH DUE CARE AND CAUTION.
The elaborate procedure prescribed, under Section 24 Cr.P.C, is to ensure that no "unfit" person is appointed as an Additional Public Prosecutor. The District Magistrate must form an opinion that all the five advocates, included by him in the panel forwarded to the State Government, are "fit" to be appointed to the said post. Since Section 24 (4) requires the District Magistrate to form the opinion, and not the Sessions Judge, the "fitness" of even those advocates, who have been found "fit" by the Sessions Judge, must be examined by the District Collector. The express words of Section 24(4), and its insistence upon the District Magistrate acting in consultation with the Sessions Judge, clearly spells out the policy of the law to select the best person available for appointment as a Public Prosecutor. The appointment is to be made on consideration of merit; and the fitness of a person, for appointment as a Public Prosecutor, must be understood accordingly. The choice of the Government is limited to the names included in the panel, and the names included in the panel must be of meritorious persons who, in the opinion of the District Magistrate, are fit for appointment as a Public Prosecutor. (Reyasat Ali Khan6). The District Magistrate should ascertain the antecedents of those advocates to be included in the panel; whether they are involved in criminal cases etc. The opinion formed by him regarding the "fitness" of the eligible Advocates, proposed to be included in the panel, would also be based on the antecedent verification report furnished to him by the Superintendent of Police. The word "antecedent" means preceding or prior. It also means a circumstance, event, history, characteristics etc., of one's earlier life. The antecedents of an advocate is a factor relevant to the formation of the opinion whether or not the said advocate is "fit" to be appointed as an Additional Public Prosecutor. A thorough verification of the antecedents of the panelists is, therefore, essential. Verification of the antecedents of the advocates, before inclusion of their names in the panel for appointment as a Public Prosecutor/Additional Public Prosecutor, is an important and a crucial part of a selection process. It must be undertaken with due care and caution, and not treated as an empty formality or a mere ritual.
Inquiries in this regard must be conducted without favour, prejudice or malice. It is disconcerting that, in the present case, the exercise of antecedent verification of an advocate, to be included in the panel for appointment as an Additional Public Prosecutor, has been carried out in such a slipshod, tardy and perfunctory manner. In the proceedings of the fifth respondent (Superintendent of Police, Chittoor District) dated 19.01.2013, reference is made to the fact that it is mandatory, in the Special Branch Manual, that the services of police personnel, not below the cadre of Head Constable, should be utilized for field verification, antecedents of foreigners, job verification etc. In causing verification of the antecedents of the sixth respondent, only a police constable was deputed contrary to the aforesaid instructions in the Special Branch Manual. The antecedent verification report, submitted by the Superintendent of Police to the District Collector, makes no reference to Crime No.66 of 2011 having been registered in the Panjani Police Station on 07.06.2011 on the complaint dated 10.11.2010, filed by the complainant before the Judicial Magistrate of First Class, Punganur, being referred for investigation under Section 156(3) Cr.P.C.
on 2.6.2011. The pendency of Crime No.66 of 2011 registered, amongst others, against the 6th respondent, ought to have been brought to the notice of the District Magistrate by the Superintendent of Police, Chittoor as this was a relevant factor which the District Magistrate was required to take into consideration before formation of his opinion whether or not the 6th respondent was "fit" to be empanelled for the post of Additional Public Prosecutor. A CRIMINAL COMPLAINT REGISTERED UNDER SECTION 154(1) Cr.P.C, IS PENDING TILL THE MAGISTRATE, AFTER CONSIDERING THE FINAL REPORT FILED UNDER SECTION 173(2), AND AFTER GIVING THE COMPLAINANT AN OPPORTUNITY OF BEING HEARD, PASSES AN ORDER CLOSING IT:
Both the District Collector and the Superintendent of Police, Chittoor state that investigation in Crime No.66 of 2011, prima facie, disclosed that the incident occurred on 24.10.2010; the complaint in Cr. No.66 of 2011 was similar to the complaint lodged by the complainant's daughter which was registered earlier as Cr. No.99 of 2010; the complaint in Crime No.99 of 2010, for offences under Sections 376 read with Sections 511 and 355 IPC, was referred as false vide proceedings of the Sub-Divisional Police Officer, Palamaner dated 14.12.2010; since the said complaint was referred as false, the present complainant had filed the second complaint, before the Judicial First Class Magistrate at Punganur, which was registered as Crime No.66 of 2011; the complaint in Crime No.66 of 1999 was also referred as false vide proceedings of the Sub-Divisional Police Officer, Palamaner dated 15.07.2011; notices were issued, and the complainant was intimated that the complaint was false by service of a notice on 26.08.2012.
It is evident from the records placed before this Court that, much before 14.12.2010 (when the Sub-Divisional Police Officer, Palamaner is said to have referred the complaint in Cr. No.99 of 2010 as false, though a copy thereof has not been made part of the record placed before this Court), the present complaint in CFR No.5470 of 2010 (which was later registered as Cr. No.66 of 2011) was filed before the Court of the Judicial Magistrate of I Class, Punganur on 10.11.2010 itself which, on being referred by the Magistrate under Section 156(3) Cr.P.C, was registered on 7.6.2011 as Cr.No.66 of 2011. The respondents contention that the complaint in F.I.R. 66 of 2011 was filed only after the earlier complaint in Crime No.99 of 2010 was referred by the Sub-Divisional Police Officer in his report dated 14.12.2010 as false, is therefore, not tenable.
The petitioner filed a copy application, in the Court of the Judicial Magistrate of First Class, Punganur in Crime No.66 of 2011 on 21.12.2012, requesting that a certified copy of the final report dated 15.7.2011; the statements recorded in Crime No.66 of 2011; and the referred notice, in Crime No.66 of 2011 of Panjani Police Station, be furnished to enable him to file them before this Court in the present Writ Petition. The Learned Magistrate, by his endorsement dated 21.12.2012, returned the memo filed by the petitioner observing that the final report, in Crime No.66 of 2011, had not been filed by the Station House Officer, Panjani Police Station till date; and the referred notices in Crime No.66 of 2011 of Panjani Police Station had also not been filed in Court till date. It is evident, therefore, that even till 21.12.2012, (i.e., even after the counter affidavits were filed by the respondents in this Writ Petition), the final report under Section 173(2), in relation to Crime No.66 of 2011, was not filed in the Court. It is admitted in the additional counter affidavit, filed by the Superintendent of Police dated 21.1.2013, that the final report in Cr. No.66 of 2011 was submitted in Court only on 27.12.2012. The protest petition, (a copy of which has been filed along with the additional counter affidavit of the Superintendent of Police), does not bear any date and, in any event, could have been filed only after a copy of the final report was served on the complainant on 26.8.2012. While the District Collector and the Superintendent of Police, Chittoor would admit that the notice relating to the final report was served on the petitioner on 26.8.2012, a copy of the order of the Judicial Magistrate of First Class, Punganur in CFR. No.5515 of 2011 in Crime No.66 of 2011 dated 22.08.2012 of Panjani Police Station (a copy of which is enclosed to additional counter affidavit of the Superintendent of Police, Chittoor) records that the Judicial Magistrate of I Class had dismissed the said complaint on 22.08.2012 since the advocate of the complainant had informed the Court that the complainant was not at all approaching him; and the complaint may be dismissed. Dismissal of the complaint in F.I.R. 66 of 2011 on 22.8.2012 was even before the notice of the final report was, admittedly, served on the complainant on 26.8.2012. It defies reason how the Judicial Magistrate of First Class, Punganur could have dismissed the complaint on 22.8.2011, much before a final report was filed in his Court on 27.12.2012. It does appear as if no notice was issued by the Learned Magistrate to the complainant before accepting the final report, and deciding not to take cognizance and drop the proceedings. This omission may well vitiate the order of the Learned Magistrate dismissing the complaint. (Union Public Service Commission vs S. Papaiah26). It would, however, be wholly inappropriate for this Court to delve on this aspect any further as the remedy, which the complainant may have on her complaint being dismissed by the Judicial Magistrate of First Class, is by way of a revision under Section 397 Cr.P.C.
It is not difficult to perceive the behind the scenes efforts made by the respondents to give a quiet burial to the complaint, lest it adversely affect the appointment of the 6th respondent as the Additional Public Prosecutor and respondents 3 and 5 be faulted, on this score, by this Court. Whether or not the 6th respondent was aware, of the complaint being registered against him in Crime No.66 of 2011, is of no consequence as no advocate can claim, as of right, that his name should be included in the panel of advocates prepared for appointment to the post of Additional Public Prosecutor. It is evident that the final report in Crime No.66 of 2011, (a copy of which was filed before the Learned Magistrate only on 27.12.2012), was pending when the Superintendent of Police submitted his antecedent verification report to the District Collector on 10.11.2011; when the District Collector forwarded the panel of Advocates to the Government by his letter dated 25.11.2011; and when the Government appointed the 6th respondent as the Additional Public Prosecutor by G.O.Ms. No.330 dated 15.2.2012.
In their respective counter affidavits both the District Collector and the Superintendent of Police, Chittoor would submit that mere allegations in an FIR cannot be termed as "involvement", unless the investigation proves the involvement of the sixth respondent, and is further subjected to trial by the Competent Court; the criminal case registered against the sixth respondent was referred as false; mere registration of the case against any person, much less the sixth respondent, cannot be taken as adverse; and no credence can be given to the allegations made against the sixth respondent in the complaint. The justification put forth both by the District Collector and Superintendent of Police, for the casual and perfunctory exercise of antecedent verification, is, to say the least, irresponsible. While registration of the FIR does not mean that the accused referred to therein are guilty of the charge, as their guilt or otherwise would be established only after completion of investigation, and the consequent trial, as the case may be, it is nonetheless a relevant factor in determining the "fitness" of an advocate for inclusion in the panel to be forwarded to the Government for appointment to the post of Public Prosecutor/Additional Public Prosecutor.
In this context it is necessary to bear in mind that, even after a final report is filed by the Police officials under Section 173(2) Cr.P.C, there is no obligation on the Magistrate to accept the said report if he does not agree with the opinion formed by the police. If he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance under Section 190(1)(c) Cr.P.C. That provision is intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute or the police, either wantonly or through bonafide error, fail to submit a report setting out the facts constituting the offence. (Abhinandan Jha & Ors vs Dinesh Mishra27). When a report forwarded by the police to the Magistrate, under Section 173(2)(i) Cr.P.C, is placed before him several situations arise. The report may state that, according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has the option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police. (Gangadhar Janardan Mhatre vs State Of Maharashtra28). Even in cases where the Magistrate decides that sufficient grounds do not subsist for proceeding further, and drops the proceeding, the informant would certainly be prejudiced as the First Information Report lodged becomes wholly ineffective. Where the Magistrate decides not to take cognizance, and to drop the proceeding in the FIR, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. (Gangadhar Janardan Mhatre28). In cases where the Magistrate, to whom a report is forwarded under Sub-section (2)(i) of Section 173 Cr.P.C., decides not to take cognizance of the offence and to drop the proceeding, the Magistrate must give notice to the informant and provide him an opportunity of being heard at the time of consideration of the report. (Gangadhar Janardan Mhatre28). The issuance of a notice by the Magistrate to the informant, at the time of consideration of the final report, is a "must". (S. Papaiah26; Bhagwant Singh vs. Commissioner of Police29). Protesting early in course of the hearing to which the informant is entitled to, he can legitimately place his complaint before the Magistrate and the Magistrate, after hearing him, may decide how to proceed in the matter - (1) whether to reject the police opinion and take cognizance on the basis of the materials collected by the police in the course of investigation; (2) whether to order reinvestigation; and (3) whether to proceed on the basis of the complaint of the informant. The informant is entitled to a notice and hearing at the time of taking cognizance or accepting the police report, as the case may be. If some evidence has not been shown in the report of the police, which evidence will go a long way to establish the guilt of the alleged offenders, it shall be open to the informant to produce the same before the Magistrate. The Magistrate, who shall hear the informant, should apply his mind to the allegations made by him, (Mohd. Faizuddin vs G. Ramakrishna Reddy30), and pass a reasoned order for a revision lies, under Section 397 Cr.P.C, against his order closing the case. Until a final report under Section 173(2) Cr.P.C. is filed, the Magistrates gives the complainant an opportunity of being heard, applies his mind to the objections raised by the complainant to the Section 173(2) Cr.P.C. report, and thereafter closes the matter, the criminal case must be held to be pending, and such pendency should be reflected in the antecedent verification report. In the present case, the antecedent verification report submitted by the Superintendent of Police to the District Collector makes no mention of any such pendency. It is also evident that the authorities have failed to consider relevant material, (pendency of a criminal complaint registered against the 6th respondent), keeping in mind the purpose and policy of Section 24 Cr.P.C. (Ajay Kumar4; CENTRE FOR PIL1; N. Kannadasan v. Ajoy Kishore31; State of A.P. v. Nalla Raja Reddy32).
It is not as if the complaint was deliberately lodged or registered, after the petitioner's name was recommended for inclusion in the panel, with a view to disable his candidature from being considered. Even before the exercise of preparation of a panel of Advocates, for appointment as an Additional Public Prosecutor commenced on a letter being addressed by the District Collector to the District Judge on 07.09.2011, the complaint in Crime No.66 of 2011 was filed against the sixth respondent before the Court of the Judicial Magistrate of First Class on 10.11.2010 itself, more than ten months prior thereto. The Superintendent of Police, Chittoor cannot absolve himself of all blame for the perfunctory exercise of antecedent verification, and shift it on a lowly police constable.
While I was initially inclined to direct the 1st respondent to consider initiating disciplinary action against the Superintendent of Police, Chittoor, and his subordinates, for having failed to refer to the pendency of FIR No.66 of 2011 in the antecedent verification report of the sixth respondent, I am refraining from doing so as the Superintendent of Police has, since, initiated disciplinary action against all those involved in the process of antecedent verification. Suffice it to admonish the Superintendent of Police, Chittoor (5th respondent), and he be warned to exercise due care and caution in causing antecedent verification in future, more particularly in relation to appointment to important posts such as the Public Prosecutor/Additional Public Prosecutor who represent the interests of the general public in the criminal justice system.
ELIGIBILITY OF THE PETITIONER IS IMMATERIAL AS IT IS THE APOINTMENT OF THE SIXTH RESPONDENT AS ADDITIONAL PUBLIC PROSECUTOR WHICH IS IN ISSUE:
The sixth respondent would, in turn, allege that the petitioner was working as a reporter in a daily newspaper, which amounted to a professional misconduct; he was suspended about three years back, for his misbehaviour, from the Bar Association, Punganur; he used to blackmail police officials; and he was filing complaints taking advantage that he was a press reporter. Even if it were to be presumed that these allegations have some basis, it cannot be lost sight of that the eligibility or otherwise of the petitioner, also an advocate, is not in issue in these writ proceedings as his name has not even been included in the panel of advocates prepared for being considered for appointment as an Additional Public Prosecutor. If, as contended by the sixth respondent, the petitioner is not suitable, he can always avail his legal remedies in case the petitioner is considered for such appointment in future. Even if the petitioner is not suitable that, by itself, does not legitimize the appointment of the sixth respondent as an Additional Public Prosecutor. Though the petitioner claims that he should have been considered for appointment, it bears no repetition that no one can claim, as of right, that they should be appointed against the existing vacancies, though they can make a grievance that either they have not received fair treatment from the appointing authority or that the procedure prescribed under Section 24 Cr.P.C. has not been followed. While exercising the power of judicial review in respect of appointments of Public Prosecutors, the Court can examine whether there was any infirmity in the "decision making process". Needless to state that, while doing so, the Court would not substitute its own judgment for the decision taken in respect of selection of persons for those posts. ((Harpal Singh Chauhan20). All that this is being done, on the process of selection being faulted, is to set aside the appointment of the sixth respondent as the Additional Public Prosecutor. The eligibility or otherwise of the petitioner or his "fitness" to be appointed as an Additional Public Prosecutor is wholly irrelevant to these writ proceedings as his name was not even included in the panel.
CONCLUSION:
As the relevant material, regarding pendency of Crime No.66 of 2011, was not taken into consideration by the District Collector while examining the "fitness" of the 6th respondent for being empanelled in the panel of advocates forwarded to the Government for being appointed as Additional Public Prosecutor and, as this relevant fact, has not only an important bearing on the decision making process but also on the integrity of the institution of the public prosecutor, the impugned G.O. must be, and is accordingly, set aside. It is open to the Government either to consider the other names in the panel or call for a fresh panel from the District Collector for appointment to the post of Additional Public Prosecutor. In case a fresh panel is called for, the District Collector shall, in the light of the observations made hereinabove, prepare a panel afresh in accordance with law, and forward the same to the Government for its consideration. Pending appointment of an Additional Public Prosecutor afresh, it is open to the respondents to make interim arrangements and permit any other Public Prosecutor, other than the 6th respondent, to hold additional charge till appointment is made afresh.
The Writ Petition is disposed of accordingly. No costs.
_____________________________ RAMESH RANGANATHAN,J Date: 15.02.2013