Telangana High Court
Kanukuntlagopika Rani vs The State Of Telangana on 12 March, 2024
HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT PETITION No.18153 of 2021
ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is filed by the petitioner, seeking the following relief:
"...to issue any appropriate writ, order or direction one more particularly one in the nature of Writ of Mandamus declaring impugned notification G.O.RT.No.994 dated 28.06.2021 issued by Respondent No.1 appointing the Respondent No. 5 as Special Public Prosecutor (tenure) for fast track criminal court in the cadre of Additional District and Sessions Judge for expeditious trial and disposal of rape and Protection of children against sexual offences of children (POSCO) Act cases at Warangal as arbitrary, illegal, violative of Article 14 of the constitution of India and against the public interest and consequently set aside the said appointment in the interest of justice.."
2. It is the case of the petitioner, who claims to be a practicing Advocate that respondent No.5 along with other Advocates attacked the-then learned I Additional District and Sessions Judge, Warangal, in the Court Hall while conducting Court proceedings and a complaint dated 28.06.2016 was lodged against the respondent No.5 and others by the-then learned I Additional District and Sessions Judge, Warangal and the same was registered as a case in Crime No.204 of 2016 on the file of Subedari Police Station, Warangal, for the offences under Sections 143, 452, 342, 332, 506, 186 r/w 149 IPC and Section 3 of the Prevention of Damage to Public Property Act, 1984 (for short "PDPP Act"). It is further case of the petitioner 2 that the erstwhile Common High Court for the States of Telangana and Andhra Pradesh, has initiated suo motu contempt case vide C.C.No.52 of 2016 against the respondent No.5 and the Bar Council of India also initiated disciplinary proceedings against the respondent No.5. However, the respondent No.4 without considering the involvement of respondent No.5 in the said Crime, recommended his name for appointment as Public Prosecutor and basing on the said recommendation, the respondent No.1 vide G.O.Rt.No.994 Home (Courts.A1) Department dated 28.06.2021 has appointed the respondent No.5 as Special Public Prosecutor (tenure) for Fast Track Criminal Court in the cadre of Additional District and Sessions Judge for expeditious trial and disposal of Rape and Protection of Children from Sexual Offences (POCSO) Act cases at Warangal. Therefore, the petitioner prayed this Court to allow the writ petition by setting aside the impugned G.O dated 28.06.2021.
3. The Respondent No.1 has filed counter affidavit and stated that the appointment of Law Officers in the State of Telangana is governed by the Telangana Law Officers (Appointment and conditions of Service) Instructions, 2000, issued in G.O.Ms.No.187, Law (L) Department, Dated: 06.12.2000. As per instruction 5(1) of the said instructions, "appointment of Law officers in all the courts and Tribunals subordinate to the High Court shall be made on the basis 3 of the recommendations of the District Collector concerned who shall ascertain the views of the concerned District and Sessions Judge before making the recommendations". As per Note-1 under instruction 5(2), "While recommending panels, the District Judge may obtain the Bio-data from such of the Advocates whom he considers to be fit for appointment and send a panel of eligible candidates on that basis without calling for Bio-data from all the advocates having a particular standing. As per Note-1 under instruction 5(2), "the collectors shall, while making recommendation to the Government, furnish the following particulars, in respect of Advocates included in the panel, which shall pertain to a period of three years immediately preceding the year in which the recommendation is made and which shall be in a full and complete form and adequate for the purpose of the selection i.e, Qualification, Age, Social Status, Standing at Bar as an Advocate, Nature of Practice, the number of Sessions cases conducted (in case of posts of Public Prosecutor and Additional Public Prosecutor) the number of suits, appeals and the like conducted (in case of posts of Governments Pleaders and A.G.P's) the amount of Income Tax, if any paid, general antecedents, efficiency, reliability, an appraisal by the Sessions Judge or the District Judge about the nature and quality of advocacy, general repute and personality". It is further stated that the respondent No.4 vide letter No.REV/C1/LAO/0016/2020-COLL 4 WGLU dated:14-12-2020, has submitted that the learned I Additional District Judge, FAC Principal District Judge, Warangal vide letter dated 29.10.2020 has furnished the following panel of (5) Advocates for the post of Additional Public Prosecutor to the Special Court for expeditious trial and disposal of Rape and Protection of Children from Sexual Offences (POSCO) Act cases at Warangal along with their Bio-datas:
S.No. Name of the Advocate Social Status Standing at Bar 1 Sri M. Raghu OC 12 years 2 Sri M. Ranjeeth BC 22 years 3 Sri M. Jayapal SC 20 years 4 Sri D. Ramulu ST 25 years 5 Smt. K. Gopika Rani SC (Women) 14 years It is further stated that the respondent No.4 has got verified the character and antecedents of the above panel of advocates and as per the report submitted by the Commissioner of Police, Warangal, the respondent No.5 (who was placed at Sl.No.2) was acquitted in 8 criminal cases and one case is pending i.e, Cr.No.204/2016 & CC/0400520/2016. The respondent No.5 was also involved in Cr.No.451/2011 under Section 151 Cr.P.C. In respect of Sri D.Ramulu, Advocate (who was placed at Sl.No.4), it is stated that he was involved in a Criminal Case in Cr.No.389/2005 dated 01.10.2005 for the offences under Section 384 read with 511 IPC Section 25(1B) of Indian Arms Act, and the said case ended in acquittal on 08-07-2010. It is further stated that basing on the panel 5 of names received from the respondent No.4 in consultation with the Principal District & Sessions Judge, Warangal, Government after obtaining orders from the competent authority as per Rules, selected one among the panel of five (5) advocates and issued orders appointing respondent No.5 as Special Public Prosecutor (Tenure) for Fast Track Special Court in the cadre of Additional District and Sessions Judge for expeditious trial and disposal of Rape and Protection of Children from Sexual Offences (POCSO) Act, cases at Warangal. It is further stated that the appointment of respondent No.5 is purely on temporary basis i.e, for a period of three years and it is for the discretion of the Government to appoint one among the panel of advocates furnished by the District Collector. It is also stated that the consideration of candidature of an advocate for appointment to the tenure post of Additional Public Prosecutor of any Court cannot be deprived of only on the basis of criminal case pending against him/her until it is proved otherwise. Thus the respondent No.1 supported the appointment of respondent No.5 as Special Public Prosecutor and prayed for dismissal of the writ petition.
4. The respondent No.4 has filed counter affidavit inter alia stating that the respondent No.5 furnished the case details as per the F.I.R contents and extracted portion of the complaint lodged by 6 the learned I Additional District and Sessions Judge, Warangal. It is further stated that the charge under Section 3 of PDPP Act is crime against officials but there is no specific mention in the said provision against the Judges or Magistrates. The respondent No.4 has further stated that the gravity of the charges and involvement of respondent No.5 in the offence under Section 3 of PDPP Act, initiation of suo moto contempt proceedings vide Case No.1452/2016 and also disciplinary proceedings against the respondent No.5 by the Bar Council of India, are not within his knowledge. It is further stated that on receiving the panel consisting of five advocates, the respondent No.4 addressed a letter to the Commissioner of Police, Warangal vide R.C.No.C1/850/2020 dated 02.06.2020, for verification of character and antecedents of five advocates who are in the panel and in turn the Commissioner of Police, Warangal, sent report vide C.No.2118/CSB-JVR/WRLC/2020 dated 24.11.2020, wherein the total criminal cases pending against the respondent No.5 are shown as 10 and out of which, 5 cases ended in acquittal and the remaining 5 cases are pending. It is further stated by the respondent No.4 that exercising the power under Section 24 of Code of Criminal Procedure, 1978 (Cr.P.C) r/w Rule 6 of A.P. Law Officers (appointment conditions of service) Rules, 2000, vide letter No.REV/C1/LAO/0016/2020-COLL WGLU, he has forwarded the names of panel of advocates received from the I Additional District 7 Judge, Warangal along with bio-data and antecedents report furnished by the Commissioner of Police, Warangal, to the respondent No.1 and the respondent No.1 being the competent authority, has issued the impugned G.O.
5. The respondent No.5 has filed counter affidavit, inter alia stating that a false case in Crime No.204/2016 was registered against him during the movement for bifurcation of High Court of Telangana. It is further submitted that after formation of State of Telangana, all Government departments got separated except the Hon'ble High Court and the entire Telangana Advocates raised voice for bifurcation of High Court for the State of Telangana, as a result of which he came to know about the commotion, where the non- practicing Advocates, tried to damage the Bar and Bench decorum and Court proceedings and the respondent No.5 along with some other regularly practicing responsible Advocates tried to pacify the issue, wherein some words were exchanged between the advocates and finally the issue was pacified. It is further stated that officer who lodged complaint against him retired from service and the petitioner in fact fought for release of all the Advocates/Accused against whom cases have been registered during the agitation for separate Statehood. The respondent No.5 has further stated that since he is practicing as an Advocate since 25 years with unblemished record 8 and also rendered services as Joint Secretary and General Secretary of Bar Association, Warangal, he is fit to be appointed as Special Public Prosecutor.
6. The learned counsel for the petitioner has vehemently contended that the scheme of Section 24 of Cr.P.C. ensures 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. It is further submitted that 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. The post of Public Prosecutor/Additional Public Prosecutor is a statutory post, and they perform statutory functions. While empaneling the names of the Public Prosecutors, the authorities must take a decision on the basis of consideration of relevant material keeping in mind the purpose, object and policy of the provision. It is further submitted that even though respondent No.5 9 is involved in grave offence, rendering himself disqualified for considering his name for appointment as Public Prosecutor, the respondent Nos.1 to 4 without taking the relevant factors into consideration while adjudicating the suitability of the respondent No.5 for appointment as Public Prosecutor, has erroneously considered name of respondent No.5 and therefore, prayed to set aside the impugned G.O issued by the Government by allowing the writ petition. In support of his submissions, the learned counsel has relied upon the following decisions:
i. Harpal Singh Chauhan and others vs. State of Uttar Pradesh 1 ii. Union of India and others vs. Methu Meda 2 iii. P.N.S.Prakash vs. Secretary to Government of Andhra Pradesh, Legislative Affairs & Justice, Law Department and others 3 iv. Laxman Rupchand Meghwani vs. State of Gujarat and others 4
7. Per contra, the learned Government Pleader for Home appearing for the respondent Nos.1 to 3 and learned Government Pleader for Revenue appearing for the respondent No.4 has submitted that basing on the panel of names received from the respondent No.4 in consultation with the Principal District & 1 (1993) 3 SCC 552 2 (2022) 1 SCC 1 3 2013 (1) ALD (Cri) 772 4 2016 GLH (1) 485 = (2016) 2 GLR 1671 10 Sessions Judge, Warangal, as per the procedure contained in Telangana Law Officers (Appointment and Conditions of Service) Instructions, 2000, issued in G.O.Ms.No.187 Law (L) Department dated 06.12.2000 and after calling for necessary report from the Commissioner of Police, Warangal, the respondent No.1 selected one among the panel of five (5) advocates and issued orders appointing respondent No.5 as Special Public Prosecutor (Tenure) for Fast Track Special Court in the cadre of Additional District and Sessions Judge for expeditious trial and disposal of Rape and Protection of Children from Sexual Offences (POCSO) Act, cases at Warangal. It is further submitted that the appointment of respondent No.5 is purely on temporary basis i.e, for a period of three years and it is for the discretion of the Government to appoint one among the panel of advocates furnished by the District Collector. It is further submitted that respondent No.5 is fit to be appointed as Special Public Prosecutor as he was not convicted in any of the criminal cases registered against him and that pendency of criminal case does not debar the respondent No.5 from seeking appointment as Public Prosecutor. Therefore, there are no legal infirmities in the impugned G.O and ultimately prayed to dismiss the writ petition.
8. The learned counsel for the respondent No.5 has vehemently contended that since the respondent No.5 has actively participated in 11 the Telangana movement and bifurcation of the Common High Court and also as he appeared for Advocates who participated in the agitation for the cause of separate Statehood, false cases have been registered against the respondent No.5 and therefore, the appointment of respondent No.5 as Special Public Prosecutor is not against the public interest. It is further submitted that since the respondent No.5 was not convicted in any of the criminal case registered against him, it cannot be said that respondent No.5 is involved in any misconduct or moral turpitude and pendency of criminal case is not a relevant factor for considering the suitability of the candidate. It is further submitted that respondents have followed the procedure as prescribed under Section 24 of Cr.P.C and as the respondent No.5 has satisfied all the requirements and fit to be appointed as Special Public Prosecutor, the respondent No.1 being the competent authority selected one among the panel and therefore, there is no illegality or legal infirmities in the impugned G.O warranting interference by this Court under Article 226 of the Constitution of India and ultimately prayed to dismiss the writ petition.
9. Considered the submissions of the learned counsel for the respective parties and perused the record.
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10. It is the case of the petitioner that respondent No.5 is not qualified to be appointed as Special Public Prosecutor (tenure) for Fast Track Criminal Court in the cadre of Additional District and Sessions Judge for expeditious trial and disposal of Rape and Protection of Children from Sexual Offences (POCSO) Act cases at Warangal. It is further case of the petitioner that respondent No.4 while recommending the name of the respondent No.5 along with other candidates, has not taken into consideration about the involvement of respondent No.5 in various criminal cases, which renders the respondent No.5 to be disqualified for appointment as Special Public Prosecutor. It is stated by the petitioner that as per sub-Section (1) of Section 24 Cr.P.C, 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. As per sub-Section (5) of Section 24 Cr.P.C, 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). Sub-section (4) of Section 24 Cr.P.C, states that the District Magistrate shall, in consultation 13 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. According to the petitioner, 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. It is the contention of the petitioner that the factors which the District Judge may take into consideration, before satisfying himself that an eligible advocate is "fit" to be empaneled 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 respondent No.4 in his counter affidavit stated that while recommending the names it is not within his knowledge about the gravity of the charges mentioned in Crime No.204/2016 registered for the offences under Sections 143, 452, 342, 332, 506, 186 r/w 149 IPC and Section 3 of PDPP Act. It is also stated by the respondent No.4 that he is unaware about the 14 pendency of the disciplinary proceedings initiated against the respondent No.5 by the Bar Council of India. Admittedly, as per Section 24 of Cr.P.C, the District Magistrate shall, in consultation with the Sessions Judge, shall 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. The respondent No.4 has admitted in his counter affidavit that he is not having knowledge about the involvement of respondent No.5 in criminal cases or gravity of charges and also pendency of disciplinary proceedings initiated by the Bar Council of India. The respondent No.4 while exercising the power under Section 24(4) of Cr.P.C, in making his recommendation, in consultation with the District and Sessions Judge, 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.
11. This Court after considering the various decisions of Hon'ble Supreme Court and this Court and also the statement by the respondent No.4 in his counter affidavit that he is not having knowledge about the involvement of the respondent No.5 in criminal cases or gravity of charges and also pendency of disciplinary proceedings initiated by the Bar Council of India, is of the opinion that as the relevant material, was not taken into consideration by the 15 respondent No.4 while examining the "fitness" of the respondent No.5 for being empaneled in the panel of advocates forwarded to the Government for being appointed as Special 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. issued by the respondent No.1 is liable to be set aside.
12. Accordingly, this Writ Petition is allowed and the impugned G.O.Rt.No.994 Home (Courts.A1) department dated 28.06.2021 issued by the respondent No.1 appointing the respondent No.5 as Special Public Prosecutor (tenure) for Fast Track Court in the cadre of Additional District and Sessions Judge for expeditious trial and disposal of rape and Protection of Children from Sexual Offences (POCSO) Act cases at Warangal, is set aside. It is left open to the Government to call for fresh panel of names by following the procedure as contemplated under law.
As a sequel, the miscellaneous petitions pending, if any, shall stand closed. No order as to costs.
_________________________ C.V.BHASKAR REDDY, J Date: 12.03.2024 scs