Madhya Pradesh High Court
Badri Vishal Gupta vs State Of M.P. And Ors. on 23 July, 2007
Equivalent citations: 2007CRILJ4421, 2007(3)MPHT453
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. In this writ appeal cogency and substantiality of the order dated 25-10-2005 passed by the learned Single Judge in the Writ Petition No. 4753/2004 has been called in question.
2. Bereft of unnecessary details the facts which are obligatory to be uncurtained are that the appellant-petitioner (hereinafter referred to as 'the appellant') was appointed as an Additional Government Pleader-cum-Assistant Public Prosecutor for Begumganj, District Raisen and while functioning in the said post the third respondent came to be appointed as Additional Government Pleader-cum-Assistant Public Prosecutor by order dated 6-10-2004 passed by the respondent State. The said appointment was assailed by the petitioner invoking the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India contending, inter alia, that the name of the respondent No. 3 was not recommended by the District Judge, Raisen for his appointment; that the District Magistrate had sent the names to the State Government without recommendation of the District Judge; that the respondent No. 1 without considering the factum that there had been no recommendation in respect of respondent No. 3 appointed him to the post in question which suffers from non-compliance of the provisions engrafted under Section 24 of the Code of Criminal Procedure (for short 'the Cr.PC) and Rule 15 of the Law Department Manual. It was further contended before the learned Single Judge that prior to the appointment of the respondent No. 3 the appellant was appointed on 19-8-2004 but the same was cancelled as per order contained in Annexure P-5 to the writ petition and within a short span of five weeks, the respondent No. 3 was appointed. The decision rendered in the case of State of U.P. v. John Mal 2004 AIR SCW 3888 was commended before the learned Single Judge.
3. The stand and instance of the appellant was resisted before the learned Single Judge by the respondents contending, inter alia, that the name of the third respondent was forwarded and recommended by the District Judge and thereafter the District Magistrate had forwarded the list and on following due procedure the appointment was made. It was further put forth that when the appellant was appointed on 19-8-2004 the name of the respondent No. 3 was not recommended in consultation with the District Judge but the State Government included his name and he was appointed and because of this impropriety and illegality the order was cancelled and the Collector was directed to furnish a fresh list of suitable Counsel and thereafter the respondent No. 2 in consultation with the District Judge forwarded the name of the respondent No. 3 along with other candidates and the name of the respondent No. 3 was found more suitable and eventually he was appointed on the post in question. It was further pleaded that the District Magistrate has the authority and has been empowered to recommend the names of suitable Counsel under Section 24 of the Cr.PC and there having been no violation of any of the postulates engrafted therein or stipulation in the Law Department Manual there was no warrant of interference in the matter of appointment.
4. A counter affidavit was filed by the respondent No. 3 contending, inter alia, that his name for the post in question was sent on 7-11-2003 but no further appointment to the post of Additional Government Pleader-cum-Assistant Public Prosecutor was made. The respondent No. 2, Collector of the District recommended the name of respondent No. 3 on 9-8-2004 and accordingly he was appointed but as the name of the said respondent was not in the panel of the District Judge sent earlier the order was cancelled. Thereafter to fill up the vacancy of the two posts at Begumganj the respondent No. 1 restarted the process and called panel from the District Magistrate. The District Magistrate sent a letter to the Sessions Judge, Raisen. The District Judge sent a letter to the Bar Association of Begumganj for sending the names of the Advocates for the aforesaid appointment. It was also put forth that the panel sent by the Bar Association was duly recommended by the Sessions Judge, Raisen for appointment. The Collector sent the panel after due consultation with the Sessions Judge and in the opinion of the authorities the respondent No. 3 was found fit and suitable to be appointed to the post in question. Eventually an appointment letter was issued and he joined the duty on 13-10- 2004. Various other averments had been made to justify the appointment which need not to be dwelled upon.
5. Learned Single Judge adverted to Section 24 of the Cr.PC, Rule 15 of the Manual, referred to the names sent by the learned District Judge, law laid down in the case of Johri Mal (supra) and thereafter came to hold as under:
(12) In this letter, the District Judge referred that the names sent by Bar Association, Raisen and Begumganj are being sent to the District Magistrate, without expressing his opinion in this regard. Thereafter the District Magistrate sent the letter Annex. R/1 on 25-9-2004 which shows his consent and his opinion. The panel was sent in which name of respondent is appearing at Serial No. 1. Now the question arises, whether any consultation was made with the District Judge before calling for fresh panel or what were the reasons for calling a fresh panel while the District Judge had already sent his panel on 5-7-2004 (Annexure P-3). In this regard, note-sheet of respondent No. 1 dated 17-8-2004 shows that the previous appointment was cancelled. So fresh panel was called by the District Magistrate. In the aforesaid circumstances, when the previous appointment was cancelled, the respondent No. 1 was right in calling the fresh panel from the District Magistrate because in the previous panel, the District Magistrate recommended the name of respondent No. 3, but his name was not recommended by the District and Sessions Judge. Now the question remains whether at the second time when the panel was called by the District Magistrate from the District Judge whether respondent was recommended or not? In this regard, respondent Nos. 1 and 2 in the return have stated that respondent No. 2 in consultation with the District Judge forwarded the name of respondent No. 3 along with other candidates and on overall consideration, respondent No. 3 was found more suitable. As such, respondent No. 3 has been selected and appointed as Additional Government Pleader. The similar facts are found in the letter (Annexure R-1) filed by the State in which the District Magistrate has referred that the panel has been sent with the consent of the District and Sessions Judge. There is no rebuttal of the fact that the Collector has not consulted in the matter with the District and Sessions Judge after receiving the panel from the District Judge. In the panel the name of the respondent No. 3 is appearing at Serial No. 1 and the petitioner's name is appearing at Sl. No. 4. In the absence of any cogent evidence that the District Magistrate has not consulted the name with the District Judge, a presumption may be drawn in this regard that the Collector with the consultation of the District Judge recommended the name of respondent No. 3. In this case, no rejoinder has been filed by the petitioner to rebut the aforesaid facts. In absence of which it can be presumed that the recommendation of the District Magistrate was with the consultation of the District Judge. In aforesaid circumstances, a due procedure has been followed in this case for the appointment of Additional Govt. Advocate and I do not find any merit in the contention of the petitioner that the respondent No. 3 was appointed without any consultation with the District Judge.
6. We have heard Mr. Naman Nagrath, learned Counsel for the appellant, Mr. T.S. Ruprah, learned Additional Advocate General for the State and Mr. Ashok Chakravarti, learned Counsel for the respondent No. 3.
7. To appreciate the submissions raised at the Bar it is seemly to refer to Section 24 of the Cr.PC. Sub-sections (4) and (5) which are relevant for present purpose read as under:
24. Public Prosecutors.-(1) (2) (3)
(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 Prosecutors 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).
8. Clause 15 of the Law Department Manual, which has been referred to us reads as under:
15. Appointment.--All appointments of Public Prosecutors and Additional Public Prosecutors shall be made by Government. Government may call for recommendations for these posts from the District Magistrate at the headquarters of the sessions division of other area concerned. The District Magistrate shall then consult the District and Sessions Judge demi-officially and submit the letters opinion along with his own and also a list of pleaders practising in his district to Government.
9. Sub-section (4) came to be interpreted in the case of Reyasat Ali Khan v. State of Bihar 1996 (2) Crimes 358, wherein it has been held that Sub-section (4) casts a duty upon the District Magistrate to prepare a panel of names of persons, who, in his opinion, are fit to be appointed as Public Prosecutors in consultation with the Sessions Judge. The sub-section obliges the District Magistrate to hold consultation with the Sessions Judge and to prepare a panel. It has been held in the said case that the provisions of sub-section are mandatory.
10. Similar view has been expressed in the case of Neelima Sadanand Vartak v. State of Maharashtra 2005 Cr.LJ (NOC) 264.
11. In Mundrika Prasad Singh v. State of Bihar , it has been held as under:
14. It is heartening to notice that the Bihar Government appoints these lawyers after consultation with the District Judge. It is in the best interest of the State that it should engage competent lawyers 'without hunting for political partisans regardless of capability. Public offices and Government Pleadership is one - shall not succumb to Tammany Hall or subtle 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 achieving this object is to act on the advice of the District Judge regarding the choice of Government Pleaders. When there were several thousand cases in the Patna Courts and hundreds of cases before a plurality of Tribunals, it was but right that Government did not sacrifice the speedy conduct of cases by not appointing a number of pleaders on its behalf for the sake of the lucrative practice of a Single Government Pleader. It is inconceivable how he would have discharged his duties to the Court and to his client if, this crowd of land acquisition cases were posted in several Courts more or less at the same time. Adjournment to suit Advocates' convenience becomes a bane when it is used only for augmentation of Counsel's income resisting democratisation and distributive justice within the profession. These principle make poor appeal to those who count, which he is a pity.
12. In John Mai (supra), a three Judge Bench of the Apex Court while dealing with the issue of consultation expressed the view as under:
86. The age old tradition on the part of the States in appointing the District Government Counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles. Whereas the District Judge is supposed to know the merit, competence and capability of the concerned lawyers for discharging their duties, the District Magistrate is supposed to know their conduct outside the Court vis-à-vis the victims of offences, public officers, witnesses etc. The District Magistrate is also supposed to know about the conduct of the Government Counsel as also their integrity.
88. The State should bear in mind the dicta of this Court in Mundrika Prasad Singh (supra), as regard the necessity to consult the District Judge. While making appointments of District Government Counsel, therefore, the States should give primacy to the opinion of the District Judge. Such a course of action would demonstrate fairness and reasonableness of action and, furthermore, to a large extent the action of the State would not be dubbed as politically motivated or otherwise arbitrary. As notice hereinabove, there also does not exist any rationale behind deletion of the provision relating to consultation with the High Court in the matter of appointment of the Public Prosecutors in the High Court. The said provision being a salutary one it is expected that the State of U.P. either would suitably amend the same or despite deletion shall consult the High Court with a view to ensure fairness in action.
(Emphasis supplied)
13. In view of the aforesaid the seminal question that emerges for consideration is whether consultation has been done between the District Magistrate and the District Judge. It is crystal clear that initially the name of the respondent was not sent and accordingly his appointment was cancelled. Thereafter the Department of Law sought fresh recommendation from the District Magistrate. On being requested by the District Magistrate, the District Judge sent a letter dated 23-9-2004 after getting names from the Bar Association of Raisen and Begumganj. The English translation of the said letter reads as under:
Office of the District and Sessions Judge, Raisen, M.P. Semi-Government Letter No. 31/two-14-7/80 Raisen, Dated 23-9-2004 Sub : Regarding appointment of Additional Government Pleaders.
Dear Shri Pande Ji, By a Semi-Government letter your office has sought the names for the purpose of appointment of Additional Government Pleader one post each at Raisen and Begumganj.
Two copy of each application and names sent by Bar Association of Raisen and Begumganj are being sent herewith.
For the post of Additional Government Pleader/Assistant Public Prosecutor, Raisen:
(1) Shri Kailash Narayan Saxena Advocate (2) Shri Mirja Musrat Bag Advocate (3) Shri Rajive Shrivastava Advocate (4) Shri Chandrakumar Maheshwary Advocate
For the post of Additional Government Pleader/Assistant Public Prosecutor, Begumganj (1) Shri O.P. Dubey, Advocate (2) Shri Narendra Bhargava Advocate (3) Shri Chandmal Sahu Advocate (4) Shri Badri Vishal Gupta (Ex. A.G.P.) "With good wishes"
Well wisher (Yakub Ali) Ends : As above Two copies of applications To, Shri Arun Kumar Pande, District Magistrate, Raisen MP.
14. Learned Single Judge, as has been quoted hereinabove, has held that the District Judge has forwarded the name of respondent No. 3 along with other candidates and on overall consideration the respondent No. 3 was found more suitable. Learned Single Judge has observed that the panel was sent with the consent of the District Judge and there is no rebuttal of the fact that the Collector had not consulted with the District Judge after receiving the panel from the District Judge. He has also observed that the respondent No. 3 was placed at Serial No. 1 and the name of the appellant was placed at Serial No. 4. He has also expressed that in the absence of any cogent evidence that the (District Magistrate has not consulted with the District Judge, a presumption may be drawn in that regard that the Collector with the consultation of the District Judge recommended the name of the respondent No. 3.
15. As has been held in the case at Johri Mal (supra), which we have reproduced above it has been reiterated that recommendation of the names has to be done in consultation with the District Judge is based on certain principles as the District Judge is supposed to know the merit, competence and capability of the concerned lawyers and the District Magistrate is supposed to know their conduct and also their integrity.
16. In Mundrika Prasad Singh (supra), the Apex Court has held that one effective method of achieving the object is to act on the advice of the District Judge regarding the choice of Government Pleaders. The District Judge (sic : District Magistrate) is under an obligation to prepare a panel after due consultation with the Sessions Judge. There has to be an effective consultation. The term 'consultation' has been defined in Corpus Juris Secundum Vol. 16-A, 1956 Edition p. 1242 to mean to discuss something together, or to deliberate. In the term 'consultation' it is inherent there has to be effective consultation which involves exchange of mutual view point.
17. The term 'consultation' used in Section 24 of the Cr.PC cannot be equated with consultation of high constitutional functionaries but indubitably signification of the said term cannot be marginalised. The term 'consultation' has to be understood in the context in which it is used. The consultation with the District Judge, as has been held by the Apex Court, is based on certain acceptable norms. The District Judge has to form an opinion with regard to merits, competence and capability of the concerned lawyers. It must be reflected in the consultative process. In the case at hand, the District Magistrate sent a letter and the District Judge in his turn called for certain names from the Bar Association Begumganj. The letter of the District Judge shows that he has sent the names as has been sent by the Bar Association. The letter is absolutely silent with regard to the formation of opinion. The material must show that there has been consultation. Learned Single Judge has drawn an inference that a presumption may be drawn that the Collector had consulted with the District Judge and recommended the names. What has come on record is that the Collector had sent a letter and the District Judge called for the names from the Bar Association and forwarded the names. His opinion, as is perceptible, is absent. A presumption in this regard, as we are disposed to think, cannot be drawn. Mechanically forwarding the names cannot tantamount to consultation. It cannot be said that the District Judge had expressed the opinion with regard to merits of the Counsel. A list submitted by the Bar Association sent mechanically by the District Judge cannot be evidenced as application of mind. Therefore, we are of the considered opinion the mandatory provisions as engrafted under Section 24 of the Cr.PC has not been complied with.
18. In view of the aforesaid analysis, the writ appeal is allowed and the order passed by the learned Single Judge is sit aside. As a sequitur, the appointment of the respondent No. 3 as the Additional Government Pleader-cum-Assistant Public Prosecutor is quashed. There shall be no order as to costs.