Gauhati High Court
WP(C)/4242/2023 on 5 June, 2024
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/9
GAHC010163952023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4242/2023
RANJIT KUMAR DEKA
S/O LATE PANKAJ CHANDRA DEKA, R/O SIVBARI ROAD, P.O.-BARPETA,
P.S.-BARPETA, BARPETA, DIST-BARPETA, ASSAM, PIN-781301.
.................Petitioner
-VERSUS-
1.THE STATE OF ASSAM,
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM, DISPUR, GUWAHATI, DIST- KAMRUP (M), PIN-781006, ASSAM.
2:THE L.R. CUM COMMISSIONER AND SECRETARY TO THE
GOVERNMENT, OF ASSAM, JUDICIAL DEPARTMENT.
DISPUR. GUWAHATI. DIST- KAMRUP (M).
PIN-781006 ASSAM
3:THE SECRETARY TO THE GOVERNMENT OF ASSAM.
JUDICIAL DEPARTMENT,
DISPUR. GUWAHATI,
DIST- KAMRUP (M),
PIN-781006, ASSAM
4:THE DISTRICT AND SESSIONS JUDGE, BARPETA,
OFFICE OF THE DISTRICT AND SESSIONS JUDGE, BARPETA,
DIST- BARPETA, ASSAM, PIN-781301.
5:THE DEPUTY COMMISSIONER CUM DISTIRCT MAGISTRATE,
BARPETA,
OFFICE OF THE DEPUTY COMMISSIONER, BARPETA
DIST- BARPETA, ASSAM, PIN-781301
6:THE REGISTRAR GENERAL, GAUHATI HIGH COURT
LATASHIL, GUWAHATI, DIST- KAMRUP (M), ASSAM, PIN-781001
Page No.# 2/9
7:SMTI. PRITI DAS, ADVOCATE,
BARPETA BAR ASSOCIATION,
R/O GANDHI NAGAR,
NEAR OFFICE OF THE LABOUR COMMISSIONER, BARPETA,
DIST- BARPETA, ASSAM, PIN-78130
BEFORE
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE SUMAN SHYAM
For the Petitioner : Mr. D.J. Kapil, Advocate.
For the respondents : Mr. D. Mazumdar, Additional Advocate General, Assam for
respondent Nos.1, 2, 3 & 5.
: Mr. S.K. Das, Advocate for respondent No.7.
Date of Hearing : 27.05.2024 & 03.06.2024
Date of Judgment : 05.06.2024
JUDGMENT & ORDER (CAV)
[Vijay Bishnoi, CJ]
This writ petition is filed by the petitioner challenging the Notification dated 02.06.2023 issued by the Government of Assam, Judicial Department, Judicial Branch, whereby while exercising powers under Section 32 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter to be referred as "the POCSO Act, 2012"), Hon'ble the Governor of Assam appointed the respondent No.7 as Special Public Prosecutor to conduct cases under the POCSO Act, 2012 in the designated Special Court of the district of Barpeta with immediate effect and until further orders.
2. The brief facts, necessary for adjudication of the dispute raised in this writ petition, are that the petitioner was appointed as Special Public Prosecutor Page No.# 3/9 vide Notification dated 20.07.2020 issued by the Government of Assam, Judicial Department, Judicial Branch to conduct the cases under the POCSO Act, 2012 in the district of Barpeta with immediate effect and until further orders.
Vide notification dated 03.05.2023 issued by the Government of Assam, Judicial Department, Judicial Branch, one Smti Riju Rani Pathak, Advocate, was appointed as Special Public Prosecutor to conduct the cases under the POCSO Act, 2012 in the district of Barpeta in place of the petitioner. Smt. Riju Rani Pathak submitted her resignation and her resignation was accepted vide Notification dated 02.06.2023 and in her place, the respondent No.7 was appointed as Special Public Prosecutor to conduct the cases under the POCSO Act, 2012 in the designated Special Court in the district of Barpeta.
3. The appointment of the respondent No.7 as Special Public Prosecutor is challenged by the petitioner in this writ petition mainly on the ground that she was appointed without following the procedures as laid down under Section 24 of the Code of Criminal Procedure, 1973 [in short, "Cr.P.C., 1973"].
4. It is contended that from a conjoint reading of Section 32 of the POCSO Act, 2012 and Section 24 of Cr.P.C., 1973, it is clear that in order to be under the zone of consideration for appointment as Special Public Prosecutor under Section 32 of the POCSO Act, 2012, the name of the incumbent with minimum 7(seven) years of practice as an Advocate is specifically required to be forwarded in terms of sub-Clause 4 and 5 of Section 24 of the Cr.P.C., 1973 and no other mode or procedure of appointment is permissible under the law.
5. In support of the above contention, Mr. D.J. Kapil, learned counsel for the petitioner has placed reliance on the decision of the Hon'ble Supreme Court rendered in the case of Centre for Public Interest Litigation and Ors.
Page No.# 4/9 Vs. Union of India and Ors., reported in (2012) 3 SCC 117.
6. Counter affidavit(s) have been filed on behalf of the respondent No.2, i.e. the L.R. cum Commissioner and Secretary to the Government of Assam, Judicial Department and the respondent No.7.
In the counter affidavit filed on behalf of respondent No.2, it is contended that the appointment of the respondent No.7 as Special Public Prosecutor in the designated Special POCSO Court in the district of Barpeta is made in accordance with Section 32 of the POCSO Act, 2012. It is specifically contended that the statutory requirement of consultation with any other authority is not mandated under the POCSO Act, 2012 for appointment of a Special Public Prosecutor. It is also contended that even otherwise, Section 24 of the Cr.P.C., 1973 does not mandate any consultation for appointing any Special Public Prosecutor and therefore, there is no illegality in appointing the respondent No.7 as Special Public Prosecutor as per Section 32 of the POCSO Act, 2012.
In the counter affidavit, the respondent No.7 has claimed that while appointing her as Special Public Prosecutor, the provisions of Section 24 of the Cr.P.C., 1973 was duly complied with. It is contended that Section 32 of the POCSO Act, 2012 conferred power on the Government to appoint a Special Public Prosecutor by issuing a notification in the Official Gazette and the same has been done in the case of the respondent No.7 and therefore, there is no illegality in appointing her as Special Public Prosecutor vide Notification dated 02.06.2023.
7. It is to be noticed that during the pendency of this writ petition, the State Government issued an advertisement vide Notification dated 30.10.2023 for filling up the posts of Public Prosecutors, Additional Public Prosecutors and Page No.# 5/9 Assistant Public Prosecutors. However, it is informed by the learned counsel appearing for the respondent No.2 that the said Notification dated 30.10.2023 along with an addendum dated 14.11.2023 have already been cancelled by the State Government vide Notice dated 25.11.2023.
8. Be that as it may, the question regarding the appointment of the respondent No.7 as Special Public Prosecutor is to be examined taking into consideration the relevant statutory provisions.
9. Section 2(u) of Cr.P.C., 1973 defines "Public Prosecutor", which reads as under:
2.(u) "Public Prosecutor" means any person appointed under section 24, and includes any person acting under the directions of a Public Prosecutor;"
10. Section 24 of the Cr.P.C., 1973 deals with appointment of Public Prosecutors for conducting the proceedings before the Courts on behalf of the Central Government or the State Government as the case may be.
Section 24 of Cr.P.C. reads as under:
"24. Public Prosecutors- (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district, or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutors or an Additional Public Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be Page No.# 6/9 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).
(6) Notwithstanding anything contained in sub-Section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).
[Explanation- For the purposes of this sub-section:-
(a) "regular Cadre of Prosecuting Officers" means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post:
(b) "Prosecuting Officer" means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.] (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.
(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate."
11. Sections 31 and 32 of the POCSO Act, 2012 are in relation to Page No.# 7/9 application of the Cr.P.C, 1973 to the proceedings before a Special Court and regarding appointment of Special Public Prosecutors in those Special Courts.
Sections 31 and 32 of the POCSO Act, 2012 are reproduced hereunder:
"31. Application of Code of Criminal Procedure, 1973 to proceedings before a Special Court.-Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.
32. Special Public Prosecutor.-(1) The State Government shall, by notification in the Official Gazette, appoint a Special Public Prosecutor for every Special Court for conducting cases only under the provisions of this Act.
(2) A person shall be eligible to be appointed as a Special Public Prosecutor under sub-section (1) only if he had been in practice for not less than seven years as an advocate.
(3) Every person appointed as a Special Public Prosecutor under this Section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and provision of that Code shall have effect accordingly."
12. The Hon'ble Supreme Court in the case of Centre for Public Interest Litigation & Ors. Vs. Union of India & Ors. (supra) dealt with the issue of appointment of Public Prosecutors in Special Courts dealing with the cases relating to the Prevention of Money Laundering Act, 2002 (hereinafter to be referred as "the PML Act, 2002). The Hon'ble Supreme Court, while taking into consideration the provisions of Section 46 of the PML Act, 2002 and after taking into consideration Section 2(u) of Cr.P.C., 1973 and Section 24 of Cr.P.C. has held as under:
"20. From a perusal of Section 46(1) of the said Act, it appears that every Page No.# 8/9 person conducing prosecution is deemed to be a Public Prosecutor. At the same time, Section 2(u) CrPC makes it clear that any person who is appointed under Section 24 CrPC is a Public Prosecutor. Therefore, on a conjoint and harmonious reading of Section 46 along with Section 24 CrPC it appears the expression "persons conducting the prosecution before the Special Court" in sub-section (1) of Section 46 of the said Act, would mean that such a person must either be appointed by the Central or the State Government after following the procedure prescribed in sub-sections (4), (5) along with sub-section (7) of Section 24 CrPC, or in the alternative, after following the procedure in sub-section (6) read with sub-section (7) of Section 24 CrPC. We are of the view that both the provisions, namely, the provisions of Section 46 of the said Act and Section 24 CrPC must be read together, since Section 46 of the said Act, being a later Act, makes an express reference to the provision of the pre-existing Central law, namely, the provisions of Section 24 CrPC."
13. It is to be noticed that the provisions of Section 46 of the PML Act, 2002 are similar to the provisions of Sections 31 and 32 of POCSO Act, 2012.
14. As per the decision rendered by the Hon'ble Supreme Court in Centre for Public Interest Litigation & Ors. Vs. Union of India & Ors. (supra), it clear that a "Public Prosecutor" in the designated Court can either be appointed by the Central Government or the State Government after following the procedures prescribed in sub-Sections 4 and 5 along with sub-Section 7 of Section 24 of Cr.P.C. or after following the procedures prescribed in sub-Section 6 read with Section 7 of Section 24 of Cr.P.C.
15. In the present case, as the facts emerge, it is clear that while appointing the respondent No.7 as Special Public Prosecutor in the district of Barpeta to conduct the cases under the POCSO Act, 2012, the procedure as laid down under Section 24 of Cr.P.C. has not been followed. As provided under sub- Section (4) of Section 24 of Cr.P.C., the District Magistrate, in consultation with the concerned Sessions Judge, has not prepared a panel of names of persons who are, in his opinion, fit to be appointed as Special Public Prosecutor. It is Page No.# 9/9 clear that when no such panel is prepared by the District Magistrate, as provided under sub-Section (4) of Section 24 of Cr.P.C., there is no question of appointing a Special Public Prosecutor out of the said panel.
16. In view of above discussion, we have no hesitation in holding that the appointment of respondent No.7 as Special Public Prosecutor in the designated Special Court in the district of Barpeta to conduct the cases under the POCSO Act, 2012 is not in accordance with law and the same is not liable to be sustained. Hence, the Notification dated 02.06.2023 is set aside.
The State Government is directed to appoint a Special Public Prosecutor in the designated Special Court in the district of Barpeta to conduct the cases of POCSO Act, 2012 as per law. The process for appointment of Special Prosecutor in the designated Special Court in the district of Barpeta to conduct the cases of POCSO Act, 2012 be completed within a period of 2(two) months from today. Till such appointment of the Special Public Prosecutor in the designated Special Court in the district of Barpeta, the respondent No.7 is allowed to continue as the Special Public Prosecutor in the designated Special Court in the district of Barpeta to conduct the cases of POCSO Act, 2012 up to the period of 2(two) months from today.
17. With the above observations and directions, the present writ petition is disposed of.
JUDGE CHIEF JUSTICE Comparing Assistant