Gauhati High Court
Md Jamaluddin Khan vs The State Of Assam And 4 Ors on 1 October, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
WP(C) No. 1598/2015
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
01.10.2015
Heard Mr. H. Ali, learned counsel for the petitioner, Mr. H.
Rahman, learned Govt. Advocate, Assam, Mr. U. K. Nair, learned
Standing Counsel, Gauhati High Court and Mr. S. Sarma, learned
Counsel for respondent No. 5.
2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of two notifications, both dated 02.02.2015, issued by the LR and Secretary to the Govt. of Assam, Judicial Department and for a direction to the respondents to allow the petitioner to continue as the Additional Public Prosecutor, Bajali. By the first notification, petitioner was relieved from the post of Additional Public Prosecutor, Bajali in the district of Barpeta with immediate effect and by the second notification, respondent No. 5 has been appointed as Additional Public Prosecutor, Bajali in the district of Barpeta under Section 24 (3) of the Code of Criminal Procedure, 1973.
3. Case of the petitioner is that he is an Advocate and is a member of the Barpeta Bar Association since 1970. With the establishment of the Court of Sub-Divisional Judicial Magistrate at Bajali, he was appointed as the Additional Public Prosecutor, Bajali WP(C) No. 1598 of 2015 Page 1 of 17 vide order dated 29.08.2002. Since then he discharged his duties as Additional Public Prosecutor, Bajali.
4. In the year 2012, Court of Additional Sessions Judge was established at Bajali. Public Prosecutor by his order dated 12.12.2014 attached the petitioner as the Additional Public Prosecutor in the newly established Court of Additional Sessions Judge, Bajali.
5. While he was discharging his duties as Additional Public Prosecutor, all on a sudden the two impugned notifications dated 02.02.2015 came to be issued. Aggrieved, present writ petition has been filed seeking the reliefs as indicated above.
6. It is contended that the impugned notifications were issued in violation of the mandatory provisions of Section 24 of the Code of Criminal Procedure (Cr.PC) and is wholly arbitrary and politically motivated.
7. An affidavit has been filed by respondent No. 2. It is stated that respondent No. 5 has been appointed as Additional Public Prosecutor in strict compliance of the provisions of Cr.PC. Communications were made to the Deputy Commissioner, Barpeta seeking a fresh panel of Advocates in the ratio of 1:3 for appointment of one Additional Public Prosecutor vide WT message dated 19.01.2012 and 15.05.2012. Accordingly, Deputy Commissioner, WP(C) No. 1598 of 2015 Page 2 of 17 Barpeta sent letter to the respondent No. 2 dated 01.04.2014. Panel, as above, was prepared by the Deputy Commissioner, Barpeta in consultation with the District and Sessions Judge, Barpeta. It is stated that petitioner has no legal right to continue as Additional Public Prosecutor.
8. A detailed affidavit has been filed by respondent No. 5. It is stated that Joint Secretary in the Judicial Department vide WT message dated 19.01.2012 had requested the District and Sessions Judge, Barpeta, Chief Judicial Magistrate, Barpeta and Sub-Divisional Judicial Magistrate, Bajali to furnish fresh panel of names of Advocates in the ratio of 1:3 for appointment of one Additional Public Prosecutor for the Sub-Divisional Judicial Magistrate Court at Bajali. A reminder was sent on 15.05.2012. Sub-Divisional Judicial Magistrate (M), Bajali submitted separate panels of Advocates for appointment of Additional Public Prosecutor and Assistant Government Pleader in the ratio of 1:3 to the Deputy Commissioner, Barpeta vide letter dated 07.03.2014. Name of respondent No. 5 was included in the panel for Additional Public Prosecutor. Thereafter, the Deputy Commissioner submitted the panel to the Government on 01.04.2014 stating that the panel was prepared in consultation with the District & Sessions Judge, Barpeta. Following the same, impugned notifications dated 02.02.2015 came to be issued. Respondent No. 5 WP(C) No. 1598 of 2015 Page 3 of 17 has joined as Additional Public Prosecutor and is presently functioning as such.
9. Leaned counsel for the petitioner has referred to the provisions of Section 24 Cr.PC and submits that no proper panel was prepared and there was no consultation with the Sessions Judge by the District Magistrate as is required under the law. Therefore, impugned appointment of respondent No. 5 is legally untenable and requires interference of the Court. He submits that having regard to the past service rendered by the petitioner, respondents may be directed to continue his appointment as Additional Public Prosecutor.
10. On the other hand, both Mr. H. Rahman, learned Govt. Advocate and Mr. S. Sarma, learned counsel for respondent No. 5 by placing reliance on the respective affidavits have vehemently contended that the procedure prescribed under Section 24 has been followed and there is no infirmity in the appointment of respondent No. 5. In any case, learned counsel would submit that since such appointment is in the nature of professional engagement, no direction can be issued to the Government to continue with the professional engagement of the petitioner as Additional Public Prosecutor.
11. Mr. Nair, learned Standing Counsel, Gauhati High Court appearing on behalf of the District & Sessions Judge, Barpeta submits WP(C) No. 1598 of 2015 Page 4 of 17 that though affidavit has not been filed in the case, he has been furnished with parawise comments dated 11.05.2015. As per parawise comments, the District and Sessions Judge, Barpeta stated that regarding appointment of respondent No. 5, District & Sessions Judge, Barpeta was not consulted and no record is available in the office. Subsequently, additional parawise comment dated 21.08.2015 was given to him whereby it is stated that the then Deputy Commissioner, Barpeta had verbally consulted the then District and Sessions Judge, Barpeta while forwarding the panel of Advocates dated 01.04.2014 to the LR and Secretary to the Judicial Department. Since consultation appeared to be verbal, it was not to her knowledge.
12. Submissions made by learned counsel for the parties have been considered.
13. In the course of hearing the case, the following order was passed on 25.08.2015:-
" Matter relates to appointment of Additional Public Prosecutor, Bajali in the district of Barpeta.
By the impugned notification dated 02.02.2015 respondent No. 5 has been appointed as Additional Public Prosecutor. Petitioner was earlier the Additional Public Prosecutor and by a separate notification, also dated 02.02.2015, he was removed from the said post paving way for the appointment of respondent No. 5.
Challenge to the appointment of respondent No. 5 has been made on the ground that there was no consultation between the District Magistrate and the Sessions Judge, Barpeta consequent upon which a panel of names was prepared which is the procedure laid down under WP(C) No. 1598 of 2015 Page 5 of 17 Section 24 of the Code of Criminal Procedure. Further contention is that the panel of names on the basis of which respondent No. 5 has been appointed is of the year 2014 and therefore the same could not have been acted upon.
Learned counsel for the parties have been heard at length.
However, before pronouncement of judgment, Court is of the view that it may be necessary to peruse the record maintained by the Office of the District Magistrate, Barpeta relating to appointment of respondent No. 5 as Additional PP, Bajali to verify as to whether the procedure prescribed under Section 24 of the Code of Criminal Procedure has been complied with or not.
Mr. H. Rahman, learned Govt. Advocate shall produce the record on the next date.
Copies of the two communications issued from the office of the District and Sessions Judge, Barpeta dated 11.05.2015 and 21.08.2015 produced by Mr. U. K. Nair, learned Standing Counsel, Gauhati High Court shall be kept as part of the record."
14. Thereafter, when the case was listed on 19.09.2015, learned Govt. Advocate submitted that though letter was written to the Office of the Deputy Commissioner, Barpeta for production of record, the record has not been furnished.
15. Section 24 of the Cr.PC deals with Public Prosecutors. While Sub-section (1) is concerned with appointment of Public Prosecutor and Additional Public Prosecutors in every High Court, Sub-section (2) deals with appointment of Public Prosecutors by the Central Govt. in any district or local area for the purpose of conducting any case or class of cases. As per Sub-section (3), in every district, the State Govt. is required to appoint a Public Prosecutor and WP(C) No. 1598 of 2015 Page 6 of 17 if required may also appoint one or more Additional Public Prosecutor for the district. As per the proviso to Sub-section (3), a Public Prosecutor or Additional Public Prosecutor appointed for one district may also be appointed as Public Prosecutor and Additional Public Prosecutor for another district. Sub-sections (4) & (5) of Section 24 are relevant for the purpose of the present case. As per Sub-section (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 Prosecutor or Additional Public Prosecutor for the district. Sub-section (5) provides that no person shall be appointed by the State Govt. 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). However, the provisions contained in Sub-sections (4) & (5) would not be applicable in a State where there is a regular cadre of prosecuting officers.
16. It is an admitted position that in the State of Assam, as on today, there is no regular cadre of prosecuting officers. That being the position, provisions contained in Sub-sections (4) & (5) of Section 24 would be applicable.
17. A conjoint reading of Sub-sections (4) & (5) of Section 24 would show the mandatory character of the two provisions. While Sub- WP(C) No. 1598 of 2015 Page 7 of 17 section (4) contains a positive mandate to the District Magistrate to prepare a panel of names of persons in "consultation" with the Sessions Judge who are in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district, Sub- section (5) contains a negative injunction on the State Government not to appoint any person 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). Thus, deducing from the above, the following steps are required to be taken for appointment of Public Prosecutor or Additional Public Prosecutor:-
1. District Magistrate shall hold "consultation" with the Sessions Judge,
2. He shall thereafter prepare a panel of names of persons who are in his opinion fit to be appointed as Public Prosecutor or Additional Public Prosecutor for the district.
3. State Government shall make appointment of Public Prosecutor or Additional Public Prosecutor for the district from amongst persons whose names appear in the panel of names prepared by the District Magistrate under Sub-
section (4).
18. In the case of State of UP vs. Johri Mal reported in (2004) 4 SCC 714, the Apex Court observed that appointment of Public Prosecutors or Additional Public Prosecutors is governed by the Cr.PC. Their appointment is a tenure appointment. They retain the WP(C) No. 1598 of 2015 Page 8 of 17 character of legal practitioners for all intent and purport. They discharge public functions and certain statutory powers are also conferred upon them, which are onerous. However, their conditions of appointment are not governed by any statute or statutory rule. The Apex Court held that so long the procedures laid down under the Cr.PC are followed and a reasonable or fair procedure is adopted, the Court will normally not interfere with the decision. The nature of appointment being in the nature of professional engagement, Courts are normally reluctant to overturn such decision unless an exceptional case is made out. The Apex Court clarified that the question as to whether the State is satisfied with the performance of its counsel or not is primarily a matter between the State and the counsel. Cr.PC is silent about renewal or extension of tenure. The action of the State in not renewing the tenure can be subjected to judicial review on the ground that the same is arbitrary. In a case of this nature, the Court may invoke the doctrine of "Wednesbury unreasonableness". Malice in law can also be a ground for judicial review. However, the Apex Court laid down the following fundamental principles to be observed by the State while appointing Public Prosecutor and Additional Public Prosecutor:-
1. good administration of justice,
2. to fulfill its duty to uphold the rule of law.
3. its accountability to the public, and WP(C) No. 1598 of 2015 Page 9 of 17
4. expenditure from the taxpayers money.
19. The Supreme Court held that only when good and competent counsel are appointed by the State, the public interest would be safeguarded. While appointing Public Prosecutor or Additional Public Prosecutor, the State must bear in mind that for the purpose of upholding the rule of law, good administration of justice is imperative which in turn would have a direct impact on sustenance of democracy. No appointment of Public Prosecutor should be made for pursuing a political purpose or for giving some undue advantage to a section of the people. Retention of its counsel by the State must be weighed on the scale of public interest. The State may even replace an efficient, honest and competent lawyer when it is in a position to appoint a more competent lawyer.
20. As noticed above, Cr.PC does not provide for renewal of extension of a term of appointment of Public Prosecutor or Additional Public Prosecutor. In such matters, discretion is vested with the State. However, it is a recognized principle of law that when discretion is vested with the State, such discretion is required to be exercised in a fair and reasonable manner. It has to be non-partisan and guided by public interest only. Therefore, the expression "consultation" appearing in Sub-section (4) of Section 24 Cr.PC assumes significance. In the said case, the Supreme Court stressed on the fact that WP(C) No. 1598 of 2015 Page 10 of 17 "consultation" with the District Judge must be an effective one. The District Judge in turn would be well advised to take his colleagues into confidence so that only meritorious and competent persons who can maintain the standard of public office can be found out. The District Judge and the District Magistrate are therefore duty bound to see that no recommendation is made for any extraneous consideration.
21. Now, what is "consultation" ? The Concise Oxford English Dictionary, Indian Edition, defines "consultation" as the action or process of formally consulting or discussion; a meeting with an expert or professional in order to seek advice. In turn, consult or consulting has been explained as seeking information or advice from some one, especially an expert or professional. On the other hand, in Black's Law Dictionary, Sixth Edition, the expression "consultation" has been defined to mean an act of consulting or conferring e.g., patient with doctor, client with lawyer; deliberation of persons on some subject. Thus what can be deduced from the above is that "consultation" is almost synonymous with discussion, rather formal discussion.
22. The Apex Court in the Supreme Court Advocates-on- Record Association -Vs- Union of India reported in (1993) 4 SCC 441 in the context of appointment of High Court and Supreme Court Judges had held the word "consultation" as meaning "concurrence" with the view of the Chief Justice of India, thus giving primacy to the WP(C) No. 1598 of 2015 Page 11 of 17 view of the Chief Justice of India in such appointment. In Johri Mal, the Supreme Court however made it clear that the particular construction given to the expression "consultation" in the Supreme Court Advocates-on- Record Association case cannot be held to be applicable in the matter of "consultation" between the District Magistrate and the Sessions Judge for preparation of the panel for appointment of Public Prosecutor or Additional Public Prosecutor. However, as already noticed, it has been held in Johri Mal that such "consultation" must be an effective one. Question for consideration is as to how such "consultation" can be an effective one?
23. The "consultation" visualized under Section 24 (4) Cr.PC would encompass various facets. While the District Judge is supposed to know the merit, competence and capability of the lawyers concerned for discharging their duties, the District Magistrate is supposed to know about their conduct outside the Court and also about their integrity. As per the decision of the Supreme Court in Mundrika Prasad Singh Vs State of Bihar reported in (1979) 4 SCC 701, the State should give due consideration to the opinion of the District Judge which would demonstrate fairness and reasonableness of action.
24. Thus all the above aspects or more would have to form part of the "consultation" between the District Magistrate and the WP(C) No. 1598 of 2015 Page 12 of 17 District Judge. These would have to be discussed by the two. Therefore, to discern as to what transpired in the "consultation" or discussion, the deliberation has to be reduced in writing in the form of recorded minutes. Otherwise it will not be possible to know as to what transpired in such "consultation". This will also ensure greater transparency and fairness in the decision making process.
25. In (2011) 5 SCC 341, State of UP & Ors. Vs Rakesh Kumar Keshari and Anr., the Supreme Court interfered with the decision of the Allahabad High Court in quashing the order of the State refusing renewal of terms of District Government Counsel (Criminal) and directing the State to renew the term, by holding that the High Court had committed a grave error in directing renewal of appointment as Government Counsel.
26. Again in the case of State of UP Vs. Ajay Kumar Sharma reported in (2014) 3 SCC 568, the Apex Court held that while renewing the term of appointment of the existing incumbents, the State Government is required to consider their past performance and conduct in the light of the recommendations made by the District Judge and the District Magistrate.
27. Having noticed the legal position as above, the facts of the present case may now be adverted to.
WP(C) No. 1598 of 2015 Page 13 of 17
28. Documents placed on record disclose that petitioner was appointed as Additional Public Prosecutor at Bajali under Sub-section (3) of Section 24 Cr.PC vide notification dated 29.08.2002 until further orders. Therefore, the said appointment was not for any particular period or tenure. After about 13 years, he was relieved from the post of Additional Public Prosecutor, Bajali by the first impugned notification dated 02.02.2015. It was followed by the second impugned notification also dated 02.02.2015 appointing respondent No. 5 as Additional Public Prosecutor in place of the petitioner. It further appears that the Government had sought for fresh panel of names from the Deputy Commissioner, Barpeta in the ratio of 1:3 for appointment of one Additional Public Prosecutor. This was in January and May, 2012. After about 2 years, the Sub-Divisional Judicial Magistrate submitted a panel of three names for appointment of Additional Public Prosecutor which contained the name of respondent No 5 and did not contain the name of petitioner. This was forwarded by the Deputy Commissioner, Barpeta to the Government on 01.04.2014 wherein he stated that the panel was prepared in "consultation" with the District and Sessions Judge, Barpeta.
29. Though District and Sessions Judge, Barpeta has not filed any affidavit, from the initial written instructions/parawise comments furnished to Mr. Nair, learned counsel dated 11.05.2015, the stand WP(C) No. 1598 of 2015 Page 14 of 17 taken was that District & Sessions Judge, Barpeta was not consulted regarding appointment of respondent No. 5 and no such record is available in the office. However, by a subsequent instruction/parawise comment dated 21.08.2015, the District and Sessions Judge, Barpeta informed that the then Deputy Commissioner, Barpeta had verbally consulted the then District and Sessions Judge, Barpeta while forwarding the panel of names and since the consultation appeared to be verbal, she was not aware of the same.
30. Both the written instructions have been placed on record and flag marked as "C" and "D" respectively.
31. Thus two things are noticeable. Firstly, the panel of names was prepared by the Sub-Divisional Judicial Magistrate (M), Bajali who forwarded the same to the Deputy Commissioner, Barpeta vide letter dated 07.03.2015. Copy of the said letter was marked to the Senior Government Pleader, Barpeta with reference to his letter dated 25.02.2014. Secondly, the Deputy Commissioner, Barpeta forwarded the panel to the Government by mentioning that the panel was prepared in consultation with the District and Sessions Judge, Barpeta.
32. As noticed above, the panel was prepared by the Sub- Divisional Judicial Magistrate and in her forwarding letter to the WP(C) No. 1598 of 2015 Page 15 of 17 Deputy Commissioner dated 07.03.2015 there is no mention about any discussion or consultation with the District and Sessions Judge. However, in the letter of the Deputy Commissioner forwarding the panel to the Government it was mentioned that the same was prepared in consultation with the District & Sessions Judge, Barpeta. The stand of the District & Sessions Judge is that Deputy Commissioner, Barpeta appeared to have verbally consulted the then District and Sessions Judge, Barpeta. There is no record or minute of such consultation. It is not known when such consultation took place or about the broad contours of the consultation. As discussed above, for consultation to be effective and meaningful it is necessary that the minutes of such consultation is recorded in writing which will ensure greater transparency and fairness in the decision making process. In the absence of recorded minutes of consultation, it would not be discernible as to how or what consultation took place or whether such consultation took place at all. Thus, the manner in which the petitioner was removed from the office of Additional Public Prosecutor, Bajali and respondent No. 5 appointed in his place is not in conformity with the requirement of Sub-sections (4) & (5) of Section 24 Cr.PC. Following the law laid down by the Supreme Court as above, appointment of respondent No. 5 is required to be interfered with though this Court would refrain from directing the State to continue with the appointment of the petitioner as Additional Public Prosecutor. WP(C) No. 1598 of 2015 Page 16 of 17 This is within the discretion of the State and in view what has been discussed above, it is expected that the State would exercise the discretion in a fair and reasonable manner.
33. Accordingly, impugned notification bearing No. JDJ.153/96/22 dated 02.02.2015 appointing respondent No. 5 as Additional Public Prosecutor, Bajali is set aside and quashed. Matter is remanded back to the respondents for a fresh decision in accordance with law keeping in mind the discussions made above.
34. Writ petition is allowed to the extent indicated above.
35. No costs.
JUDGE Aparna WP(C) No. 1598 of 2015 Page 17 of 17