Madras High Court
M.Prakasam vs The Inspector Of Police on 23 January, 2015
Author: N.Kirubakaran
Bench: N.Kirubakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.1.2015 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN Crl.O.P(MD)No.15945 of 2014 & M.P(MD)N o.1 of 2015 M.Prakasam ... Petitioner Vs The Inspector of Police, Vathalai Police Station, Trichy District (Crime No.233/2013) ... Respondents Prayer Petition under Section 482 of the Code of Criminal Procedure to transfer the trial of the above case in S.C.No.63 of 2014 on the file of the learned Principal District and Sessions Judge, Trichy to learned Principal and Sessions Judge Pudukkottai. For Petitioner : Mr.Veerakathiravan For Respondent : Mr.Balasubramaniam Govt. Advocate (Crl.Side) For Intervenor : Mr.S.Palanivelayutham * * * * * :ORDER
Law Officer should be law knowing person and not political leader knowing person. Law Officer post is not a political post, but, it is a public post with greater responsibility in the administration of justice. Unless appointment of law officers is made fairly based on the merit, ability and integrity, this kind of petition stating political reasons cannot be avoided. The petition has been filed by the accused to transfer S.C.No.63 of 2014 from the file of learned Principal District and Sessions Judge, Trichy to the file of learned Principal and Sessions Judge, Pudukottai.
2) Heard Mr.Veerakathiravan, learned counsel appearing for the petitioner, Mr.Palanivelayutham, learned counsel appearing for the Intervenor in M.P.(MD)No.1 of 2014 in Crl.O.P.(MD)No.15945 of 2014 and Mr.A.P.Balasubramaniam, learned Government Advocate (Crl.Side).
3) It is the case of the prosecution that on 13.12.2013, the victim was attacked by the accused and others and he was admitted in the hospital, where he died. Originally, a case has been registered under Sections 294(b), 341, 307 of I.P.C. After investigation, final report has been filed against the petitioner and others under Sections 341,302 of I.P.C. read with Section 34 of I.P.C. Originally, the case was filed in P.R.C.No.2 of 2014 on the file of the learned Judicial Magistrate, Musiri and subsequently the same was committed to the Principal District and Sessions Court, Tiruchirapalli in S.C.No.63 of 2014. There are four accused and the petitioner in the above Criminal Original Petition has been arrayed as A1. The Sessions case is sought to be transferred from Principal Sessions Court,Trichy to District Court, Pudukottai to some other District Court by the petitioner/accused stating that the sons of the defacto complainant/victim, namely Jayaraman and Ravikumar, who are arrayed as LW1 and LW2, are politically influential persons and they are having money and muscle power. The aforesaid LW1 and LW2 and the Public Prosecutor of Principal District and Session Court Trichy have got close association and therefore, the petitioner apprehends that he may not get justice, if the case is conducted by the learned Public Prosecutor, who has been appointed by the ruling Party. Hence, he seeks transfer of the case.
4) Mr.Veerakathiravan, learned counsel appearing for the petitioner would submit that LW1 and LW2 are office bearers of the ruling Party and the learned Public Prosecutor also belongs to the same Party and that one of the Ministers only made the petitioner as accused in the case. That apart, the petitioner is facing threat from LW1 and LW2 and in this regard, a complaint dated 22.12.2013 has been given; The petitioner has no confidence in the learned Public Prosecutor. The Public Prosecutor for the Sessions Court has been appointed in consultation with the Local Minister and MLA. Hence, the petitioner has no confidence in the Public Prosecutor. He relied upon the following judgements to state as to what is the role of the learned Public Prosecutor.
1. 1994 (4) SCC 602 (Hitendra Vishnu Thakur v. State of Maharashtra)
2. 2004 (4) SCC 714 (State of U.P. v. Johri Mal )
3. 2008 (10) SCC 180 (Jayendra Saraswati Swamigal v. State of T.N.)
4. 2014 (2) SCC 401 (J.Jayalalitha v. State of Karnataka)
5. 2010 (6) SCC 1 (Manu Sharma v. State (NCT of Delhi) Making the above contentions, he seeks transfer of the case.
5) Mr.Palanivelayutham, learned counsel appearing for the impleading petitioner would submit that the above case is a murder case, which occurred on 13.12.2013. After investigation, the final report was filed and committal proceedings were over. Summons were already served. When the matter is posted for Trial, the petitioner intends to drag on the proceedings with false pleas. There is no material to prove the allegations made by the petitioner. The petitioner herein is also from the same ruling Party and he is the President of the Village. He relied upon the judgement in K.Anbazhagan vs. Superintendent of Police and others reported in (2004) 3 SCC 767.
6) Mr.A.P.Balasubramaniam, learned Government Advocate (Crl.Side) would submit that there is no ground made out for transfer; when the matter is posted for Trial, the petitioner does not want to face the Trial and hence, the above petition has been filed and the same is liable to be dismissed.
7) Heard the parties and perused the records.
8) The petitioner is the prime accused in the murder case in S.C. No. 63 of 2014 on the file of the Principal District and Sessions Judge, Trichy. After investigation, charge sheet has been filed and the matter stands posted for Trial. Summons were already served. When the matter is posted for Trial, the petitioner has rushed to the Court stating that there is a close connection between LW1 and LW2 and the learned Public Prosecutor due to political connection. The relevant para in the petition is extracted as follows:
?It is submitted that the above said persons and the Public Prosecutor of the Principal District Court, Trichy have got close association due to political influence and the petitioner apprehends that the above said persons with the assistance of the Public Prosecutor may not get proper justice in prosecuting him. It is further submitted that the Public Prosecutor was appointed by the ruling Party and above said persons are active members of the said Party. Hence the petitioner has got every apprehension that proper trial will not be conducted in the above case before the trial court by the said Public Prosecutor.?
9) When both the accused as well as LW1 and LW2 are from the same ruling Party, the allegation of political influence is not sustainable. There is no material to prove that LW1 and LW2 have got close connection/association with the learned Public Prosecutor. The transfer of Sessions case cannot be ordered for the sake of asking and the Sessions case cannot be transferred from one District to another District, unless, there are materials produced by the petitioner that fair trial is not possible. The petitioner only makes allegations without any proof. Only when the matter is posted for Trial, the petitioner has approached this Court for transfer. This petition has been filed only to prolong the matter and to avoid the Trial.
10) Section 2(u) of the Cr.P.C. defines ? Public Prosecutor ?.
Section 24 describes about the appointment of Public Prosecutor in the High Court and in the District Courts and they are extracted as follows:
?Section 2 Cr.P.C.
Section 2(u) Cr.P.C. ?Public Prosecutor?means any person appointed under Section 24 and includes any person acting under the directions of a Public Prosecutor. ?
Section 24 of Cr.P.C. Is usefully extracted hereunder:
Public Prosecutors (Section 24 of CrPc) (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. However, the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a public prosecutor or an Additional Public Prosecutor, as the case may be, for another district. (4) The District Magistrate, 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).
(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. However, 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.
In metropolitan area, consultation for preparation of panel can be done only with Metropolitan Sessions Judge of the concerned area. Public Prosecutor can direct another to conduct the case and he will be public prosecutor under the Code.
Government Pleader (Home) who is neither public prosecutor nor Special Public Prosecutor cannot represent the State in a criminal proceeding. Assistant Public Prosecutors are not eligible as Public Prosecutors unless they have requisite qualifications as specified in Section 24(7) of the Code.
Section 24 (3) Cr.P.C. speaks about appointment of Public Prosecutor for Sessions Court by the Government through Collector in consultation with the District Sessions Judge. When the Public Prosecutor was appointed by the Government through Collector, the said Public Prosecutor is duty bound to conduct the cases. The State through Public Prosecutor, conducts the case, as any offence/crime committed is the crime against the society. Unless the appointment of Public Prosecutor to the Sessions Court is proved to be vitiated, the petitioner cannot contend that the learned Public Prosecutor is from the ruling Party and he would not act fairly. The said allegation lacks proof. In Captain Amrinder Singh vs Prakash Singh Badal and others reported in 2009 (6) SCC 260 the Apex Court held that for transfer of a Criminal case, mere apprehension is not enough and para-18 of the said judgment is usefully extracted as follows:
?18. For a transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done. It is one of the principles of administration of justice that justice should not only be done but it should be seen to be done. On the other hand, mere allegations that there is apprehension that justice will not be done in a given case does not suffice. In other words, the court has further to see whether the apprehension alleged is reasonable or not. The apprehension must not only be entertained but must appear to the court to be a reasonable apprehension.?
Except expressing apprehension, nothing is produced by the petitioner. If the contention of the petitioner that the Public Prosecutor is from the ruling party is to be accepted, the very same allegation has to be made in respect of other Public Prosecutors in the other districts also, as they might be from the same ruling party. Therefore, the transfer petition is not sustainable and the same is liable to be dismissed.
11) There is no quarrel with regard to the judgement in Sidhartha Vashisht alias Manu Sharma vs. State (NCT of Delhi) reported in (2010) 6 SCC 1 relied on by the learned counsel appearing for the petitioner regarding the role of Public Prosecutor. As rightly pointed out by Mr.Palanivelayutham, learned counsel appearing for the impleading petitioner, relying upon the judgement of the Hon'ble Supreme Court in K.Anbazhagan vs. Superintendent of Police and others reported in (2004) 3 SCC 767 that only when the Public Prosecutor acted hand in glove with the accused, there is reasonable apprehension of likelihood of failure of justice and the process of justice is being subverted. Though the petitioner quotes political reasons for transfer, it is a fact that both the petitioner as well as LW1 and LW2 are from the same ruling Party and hence there cannot be any political reason and there is no reasonable apprehension or likelihood of bias in the dispensation of criminal justice system. The apprehension of the petitioner that fair Trial is not possible, is far-fetched and therefore, the Transfer petition is liable to be dismissed.
12) As the petitioner alleges in this case that the Public Prosecutor appointed in the District Court is from the ruling party and therefore, he expresses his apprehension about the impartiality of the prosecutor, this Court is compelled to go into the manner in which law officers are appointed by the Government. Public Prosecutor represents the interest of the General Public before Court of Law. Though Section 24 of Cr.P.C. speaks about the appointment of Public Prosecutor by the Government, this case would throw light as to how Public Prosecutors/Law Officers are appointed by the Government. The practice of appointing Party Loyalists as Law Officers has been in vogue for more than 40 years.
13) The Public Prosecutor's/Law Officer's role is important in criminal cases as spelt out by the Hon'ble Supreme Court in a number of judgements.
a) State of U.P. vs. Johrival reported in 2004 (4) SCC 741 and paras 72 and 73 read as follows:
? 72. The Public Prosecutors have greater responsibility. They are required to perform statutory duties independently having regard to various provisions contained in the Code of Criminal Procedure and in particular Section 320 thereof.
73. The Public Prosecutors and the Government Counsel play an important role in administration of justice. Efforts are required to be made to improve the management of prosecution in order to increase the certainty of conviction and punishment for most serious offenders and repeaters. The prosecutors should not be overburdened with too many cases of widely varying degrees of seriousness with too few assistants and inadequate financial resources. The prosecutors are required to play a significant role in the administration of justice by prosecuting only those who should be prosecuted and releasing or directing the use of non-punitive methods of treatment of those whose cases would best be processed.?
b) AIR 1977 SC 2265 (Balwant Singh v. State of Bihar) ?The Criminal Procedure Code is the only master of Public Prosecutor and he has to guide himself with reference to Cr.P.C. only. So guided the consideration which must weigh with him is, whether the broader cause of Public Justice will be advanced or retarded ?
c) 1991(1) SCC 212 Paras 14 (Kumari Shrilekha Vidyarthi and others vs. State of U.P. And others) ?14. We may now refer to some provisions of the Code of Criminal Procedure, 1973, relating to Public Prosecutors. Section 24 provides for appointment of Public Prosecutors in the High Courts and the districts by the Central Government or the State Government. We are here concerned only with the appointment of Public Prosecutors by the State Government in the districts. Sub-section (3) of Section 24 says that for every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district. Sub-section (4) requires the District Magistrate to prepare a panel of names of persons considered fit for such appointments, in consultation with the Sessions Judge. Sub-section (5) contains an embargo against appointment of any person as the Public Prosecutor or Additional Public Prosecutor for the district by the State Government unless his name appears in the panel prepared under sub- section (4). Sub-section (6) provides for such appointments, where in a State there exists a regular cadre of Prosecuting Officers but if no suitable person is available in such cadre, then the appointment has to be made from the panel prepared under sub-section (4). Sub-section (7) says that a person shall be eligible for such appointment only after he has been in practice as an advocate for not less than seven years. Section 25 deals with the appointment of Assistant Public Prosecutors in the district for conducting prosecution in the courts of Magistrate. In the case of Public Prosecutors also known as District Government Counsel (Criminal), there can be no doubt about the statutory element attaching to such appointments by virtue of these provisions in the Code of Criminal Procedure, 1973. In this context, Section 321 of the Code of Criminal Procedure, 1973, is also significant. Section 321 permits withdrawal from prosecution by the Public Prosecutor or Assistant Public Prosecutor in charge of a case, with the consent of the court, at any time before the judgment is pronounced. This power of the Public Prosecutor in charge of the case is derived from statute and the guiding consideration for it, must be the interest of administration of justice. There can be no doubt that this function of the Public Prosecutor relates to a public purpose entrusting him with the responsibility of so acting only in the interest of administration of justice. In the case of Public Prosecutors, this additional public element flowing from statutory provisions in the Code of Criminal Procedure, undoubtedly, invest the Public Prosecutors with the attribute of holder of a public office which cannot be whittled down by the assertion that their engagement is purely professional between a client and his lawyer with no public element attaching to it.?
d) 1988 (3) SCC 144 (Dalal v. Union of India) ?The Office of the Public Prosecutor is a public one and the primacy given to the Public Prosecutor under the Scheme of Code ( Cr.P.C.) has a social purpose:
e) 1979 (4) SCC 701 Para 16 (Mundrika Prasad Singh v. State of Bihar,) ?16. In this view, ordering about a Government Pleader is obnoxious but nothing savouring of such conduct is made out although we must enter a caveat that Governments under our Constitution shall not play with Law Offices on political or other impertinent considerations as it may affect the legality of the action and subvert the rule of law itself. After all, a Government Pleader and, in a sense, every member of the legal profession, has a higher dedication to the people.?
The Law Officers are conducting cases on behalf of the State and not at the instance of the ruling Party, or whichever party comes to power. In reality, it is an unwritten rule that whichever party comes to power, that party's Advocates/sympathisers are appointed as Law Officers and sometimes, the appointment of Advocate General and Public Prosecutor of the State is also not an exception to that rule. Integrity, capability, honesty, efficiency, legal acumen of the lawyers have become secondary and loyalty to the party in power gets primacy to the appointment as Law Officers. The following are considered to be the un-written qualifications:
1) The advocates should be Card holders of the concerned Party,
2) They should have taken part in the agitation,protest, Dharna conducted by that Party,
3) They should have appeared for the party leaders, or party whenever cases are filed against them,
4) They should have appeared before the Courts in which Party leaders have to appear,
5) They should have followed the cases and helped/assisted the Public Prosecutor/Government Pleader, if the Opposite Party Leaders face prosecution,
6) They should have voiced their protest for any resolution being passed in Advocate Association/Bar Association against the ruling Party.
The above qualifications seem to weigh more with any party than the legal acumen and integrity of advocates, to be appointed as Law Officers. It is an open secret that many advocates run behind the leaders to become law officers. It only makes the party leaders to treat the said advocates cheaply even as law officers. If the Party Leaders are convinced or satisfied that the concerned advocate is a Loyalist to the Party and top Leaders, he would be considered for appointment as Law Officer. However, it does not mean that non-meritorious Law Officers are alone appointed. Most of the Law Officers appointed have been performing well.
14) It is not always necessary that one should be a Party Loyalist; sometimes, appointments are said to be obtained by the recommendations of family members and friends of the top Leaders. This is how the appointment of Law Officers, on behalf of the State, is being made right from High Court to Lower Courts. Therefore, it is not a surprise that the rate of conviction in criminal cases has become low for the past 20 years and most of the Government matters, where the Government is a party go undefended, leading to passing of exparte orders.
15) It is a sad fact that many inconvenient party men, who are capable of giving challenge to the Local Leaders and persons who are not offered MLA or M.P. Seats are accommodated as Law Officers in Courts, forgetting the fact that those appointees have to protect the interest of the common man and the State. Sometimes, full time politicians, are appointed as Government Pleaders and Public Prosecutors in the District and Lower Courts for honour sake and only their juniors or their friends conduct cases on their behalf. Moreover, it is said that corruption among some of the Law Officers is not new. The office of the Public Prosecutor/Government Pleader is stated to be used as office of Political Party whichever is in power. It is anybody's imagination in what manner the Government cases would be defended/conducted.
16) The most troubling factor is that the people who are appointed in the above mentioned manner would try to become judges quoting their position as Law Officers. The practice of selecting law officers like Advocate Generals, Public Prosecutors and Government Pleaders as Judges has been in practice for many decades. In those days, appointments were not made on political consideration and they were purely on merit. Apart from the Judges and Court Officers, the person who is always seated in the Court and conducting cases is the Government Pleader or Public Prosecutor and he/she is bound to deal with a number of cases getting enriched in law. Experience as a Law Officer in Courts is phenomenal and is considered to be a jewel in the crown of lawyer's practice. Such is the experience, the Law Officers would get during his/her tenure. In the five years, the Law Officers are bound to become more knowledgeable due to their exposure to various types of cases everyday. That is the reason Government Pleaders/Public Prosecutors are preferred for elevation as Judges. Nowadays, appointing a non-political, efficient Advocates as Law Officers has become less and whichever Party comes to power, wants to appoint party loyalists as law officers mostly and try to make them as judges in due course. Instances are not rare in which the party advocates were made as Law Officers and subsequently made as judges. It is also a fact that some of the appointees prove to be good judges.
17) In the past, persons with good legal back ground and integrity alone were invited and appointed as Law Officer, irrespective of their political affiliations and that was the reason why those Law Officers were bold and would even concede, whenever there was a case to be conceded. One such instance is when my revered Senior Mr.Habibullah Badsha, Senior Counsel, former Advocate General & Public Prosecutor, once recalled as to what happened before the First Bench of this Court when his Senior, legendary, S.Govindswaminathan, Senior Advocate was the Advocate General, when a Government Order was challenged. The First Bench asked Mr.Gonvindswaminathan, as to how the G.O. was valid. He found that G.O. was not sustainable and hence sought time to ask the Government to withdraw the said G.O. When the First Bench asked, ?if the G.O. was not withdrawn?? then, ?Either the G.O. would be withdrawn or the Court would have a new Advocate General? was the reply by Mr.Govindswaminathan. It goes without saying that the G.O. was promptly withdrawn. That was the respect in those days Law Officers commanded. Late Justice Krishnasamy Reddiar, who was the Public Prosecutor in Chengalput Court, was appointed as the Special Public Prosecutor to conduct a politically and communally sensitive case against late Muthuramalinga Thevar before Pudukottai Sessions Court. After trial, Mr.Krishnasamy Reddiar, knowing the merits of the case conceded the case before the Court and the accused were acquitted. Such was the freedom and discretion, the Law Officers had, to act independently and according to the merits of the case. Subsequently, he was appointed as State Public Prosecutor by the then Chief Minister and later, as Advocate General and finally he was elevated as a Judge of this Court and was a finest humane Judge of this Court. Nowadays, even in a deserving case, if the Law Officer concedes, the very next day, he would be removed.
18) Even if statutory notice is ordered for the presence of higher officials in contempt proceedings, the concerned law officer is taken to task including termination, forgetting the fact, non-compliance of the order/violation of the Court's Order by the official warrants their presence before the Court. It would only reveal as to how Law Officers are being dealt with and they have to discharge their responsibilities with constant fear. Therefore, some times, the Law Officers go out of the way to defend Government cases, unmindful of decorum to be maintained in the Court. Consequently, functioning of the Court is affected.
19) Though the top leaders appoint their loyalists as Law Officers under their rule, however, they choose to import lawyers from other States for their party cases. It only proves the fact that they do not have trust or faith in the calibre of party advocates. Only, whenever, for their own party cases, their own Law Officers are engaged as their counsel, people would believe that efficient Law Officers are appointed. Suitability of appointees should be the prime consideration.
20) Whenever there is a change of Government, the Law Officers would resign and new Law Officers would be appointed by the new Government. For the services rendered by the Ex-Government Law Officers under the previous rule, they will be made to run from pillar to post for getting their fees and finally, they have to approach the Courts for payments. One such case filed by an ex-Law Officer, that too, by then learned Advocate General for settlement of fee is K.V.Venkatapathi (deceased) and others vs. Chennai Metropolitan Water Supply and Sewerage Board and others reported in 2012 (3) MLJ 858. Before that, M.C.Swamy who was a Government Pleader during ADMK regime had to get his professional fees by order dated 9.4.2008 in W.P.No.5632 of 2007.
21) It is not a healthy trend to appoint Law Officers in the manner as discussed above. If the party loyalists are appointed as Law Officers, they would think only as party men and not as Law Officers of the State and they would tend to show more interest to politically sensitive matters than for matters concerning common man. Efficient Law Officers are necessary and important as they have to give their assistance to the Court in rendering justice. Unless, meritorious, law knowing suitable persons are appointed, it is very difficult for the Courts to dispose of the cases and render justice. Therefore, appointment of good lawyers with good knowledge of law and integrity is a must. As otherwise, the Courts would be confronted with more litigations as the present one.
22) Inspite of being statutory appointments, the law officers are appointed on the basis of political loyalty. There may not be any problem if the candidate is meritorious as well as loyal. Considering the above situation, this Court has to remind the political parties that the interests of the common man and State would be protected only by honest, meritorious, legally sound advocates with impeccable integrity, character, reputation and good behaviour who should be chosen as Law Officers. One should not forget that only honest, meritorious persons with legal acumen need to be appointed as Law Officers, who in due course may become judges. Only then, could justice delivery system function effectively and serve the society at large. Otherwise, sufferers are the common man,society, State and the Courts and filing of this kind of cases making allegations against the Public Prosecutor cannot be curtailed.
23) There were instances in the past, in which Advocates, who did not have enough experience about functioning of High Court and its procedures, have been appointed as Law Officers. There is no yardstick prescribing minimum years of practice and expertise in the special law for appointment as Government Advocates, Additional Government Pleaders, Special Government Pleaders and Government Pleaders. The post which an advocate gets, depends upon the amount of influence and political patronage of the concerned candidate has in the party or with the family members or friends of the party leaders. Some of the advocates who do not have sufficient experience in court practice and who do not know fundamentals of Law are being thrusted on Courts as Law Officers merely because they are Party Loyalists or known to the family members or friends of the top leaders. It is not the appointment made by the party leaders to the party hierarchy and it is the Public office to which the candidates are appointed as Law Officers and the salaries are paid from the exchequer. The power to appoint Law Officers should be judiciously or rationally and fairly exercised and suitable, honest,meritorious persons with competence have to be appointed. Though, the leaders of the party decide about the appointment, actually the appointment orders are made by the Government. Therefore, the said acts should satisfy the concept of equality as enshrined in Article 14 of the Constitution of India. It is seen, so far, no regulation or rules prescribing procedures on par with Section 24 of Cr.P.C. minimum of experience, special knowledge of law for appointment as law officer is in force. To make the appointments in a rational manner, regulations or rules are necessary. This Court expects that Government would make appropriate rules at the earliest.
24) Courts especially High Court cannot be a silent spectator regarding appointment of law officers to the High Court, especially this Court has to heavily depend upon the law officers for rendering justice. Unless suitable assistance is rendered by law officers, Courts cannot function efficiently. This Court should be consulted by the Government before appointing law officers, as done for the appointment of Public Prosecutor as per Section 24 of the Cr.P.C., as the Law Officers to be appointed would be there atleast for five years. The Law Officers are responsible officers of Court and they are part of justice delivery system. Hence this Court should atleast be provided the details like qualifications experience of the prospective Law officers and the Court's opinion is to be given primacy in the appointments. The Hon'ble Supreme Court in State of U.P. vs. Johrimal reported in AIR 2004 SC 3800 held that while appointing District Government Counsels, State should give primacy to the opinion of the District Judge and paras 86 & 88 are extracted as follows:
?86. We are also pained to see that the State of Uttar Pradesh alone had amended sub-section (1) of Section 24 and deleted sub-sections (4), (5) and (6) of Section 24 of the Code of Criminal Procedure. Evidently, the said legislative step had been taken to overcome the decision of this Court in Kumari Shrilekha Vidyarthi26. We do not see any rationale in the said action. The learned counsel appearing for the State, when questioned, submitted that such a step had been taken having regard to the fact that exhaustive provisions are laid down in the Legal Remembrancer?s Manual which is a complete code in itself. We see no force in the said submission as a law cannot be substituted by executive instructions which may be subjected to administrative vagaries. The executive instructions can be amended, altered or withdrawn at the whims and caprice of the executive for the party in power. Executive instructions, it is beyond any cavil, do not carry the same status as of a statute.
88. For the aforementioned reasons, we are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. The appeals are allowed but in the facts and circumstances of the case, there shall be no order as to costs.?
Similarly in Mundrika Prasad Sinha vs. State of Bihar reported in AIR 1979 SC 1871, the Honourable Supreme Court directed Bihar Government to act on the advice of the District Judge for the appointment of Government Pleaders and para 14 reads as follows:
?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 subtler 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 principles make poor appeal to those who count, which is a pity.?
Such is the importance of the opinion of the District Judge for the appointment of District Law Officers, necessarily, this Court (High Court) is required to be consulted and its opinion has to be taken for appointment of Law Officers to High Court.
25) Even the Courts mechanically give their seal of approval of the candidates proposed by the Government as Law Officers, though Section 24 Cr.P.C. Speaks about consultation with High Court or District Court for appointment of Public Prosecutor. The Courts should play active role, as stated above, regarding appointment of Law Officers/Public Prosecutor by considering the merits of the prospective candidates to be appointed as Law Officers as held by the Hon'ble Apex Court in State of U.P. vs. Johrimal reported in 2004 (4) SCC 714 and paras 43 and 44 are usefully extracted as follows:
?43. The State, however, while appointing a counsel must take into account the following fundamental principles which are required to be observed that good and competent lawyers are required to be appointed for:
(i) good administration of justice; (ii) to fulfil its duty to uphold the rule of law; (iii) its accountability to the public; and (iv) expenditure from the taxpayers? money.
44. Only when good and competent counsel are appointed by the State, the public interest would be safeguarded. The State while appointing the Public Prosecutors 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 Prosecutors or District Counsel should, thus, be made either 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 should replace an efficient, honest and competent lawyer, inter alia, when it is in a position to appoint a more competent lawyer. In such an event, even a good performance by a lawyer may not be of much importance.?
Hence, this Court hopes only suitable, fair and competent advocates with ability and integrity are appointed as law officers which is a must in the interest of society, State and Courts and appropriate rules or regulations for appointment of Law Officers are to be framed.
26) In the result, the petition seeking transfer of S.C.No.63 of 2014 from the file of learned Principal District and Sessions Judge, Trichy to the file of learned Principal and Sessions Judge, Pudukottai, is dismissed with a direction to the Trial Court to dispose of the case on or before 30th June, 2015. No costs. Connected M.P.No.1 of 014 is closed.
27) The copy of the order is to be placed before My Lord the Honourable The Chief Justice and to be sent to the State Government represented by Law Secretary, Fort St.George,Chennai.
23.1.2015 NOTE:I.T.ON 28.01.2015 gsr/vk Index: Yes Internet: Yes To The Principal District and Sessions Judge, Trichy.
Copy to
1.The Registrar General, High Court, Madras.
2.Law Secretary, Sate of Tamil Nadu.
N.KIRUBAKARAN, J gsr/vk Pre-Delivery Order made in Crl.O.P(MD)No.15945 of 2014 23.1.2015