Andhra HC (Pre-Telangana)
V. Kishore Kumar vs The State Of A.P. Through The Secretary, ... on 25 June, 1991
Equivalent citations: 1991(2)ALT589
JUDGMENT Jagannadha Rao, J.
1. This writ appeal has been preferred by the writ petitioner against the order of the learned single Judge dated 29-5-1991 dismissing the writ petition.
2. The writ petition was filed for the issue of writ of Mandamus directing the sole respondent viz, State of Andhra Pradesh represented by the Secretary, Law (Courts) Department directing the respondent to issue a fresh notification calling for a panel of advocates for appointment of Public Prosecutor in the Courts of the District & Sessions Judge, Adilabad from among advocates who have put in a minimum of 7 years of practice as per Section 24 (3) read with Section 24 (7) of the Code of Criminal Procedure, 1973.
3. The following are the facts of the case: The petitioner enrolled himself as an Advocate with the Bar Council of Andhra Pradesh on 9-9-1983. He has been practising in the Court at Sirpur town and Adilabad District Court. The petitioner states that initially the Government came up with the proposal to appoint a Special Public Prosecutor and a Special Additional Public Prosecutor in the above two courts. Under Section 24 of the Code of Criminal procedure, a person should not have less than 10 years standing at the Bar for being appointed as Special Public Prosecutor and a person could be appointed as Public Prosecutor if he has not less than seven years standing at the bar. It appears that the District & Sessions Judge invited bio-data from advocates who were practising for 10 years or more by 20-9-1990 as per Section 24 (8) of the Code of Criminal Procedure for consideration of the candidates to be included in a panel for appointment us Special Public Prosecutor. Pursuant thereto, advocates with more than 10 years standing at the bar submitted their bio-data to the District & Sessions Judge. The District Judge then submitted a panel of advocates to the Government for appointment of Special Public Prosecutor and Special Additional Public Prosecutor. However, the Government issued G.O. Ms. No. 50 dated 2-3-1991 appointing one Mr. Mohan Singh not as special Public Prosecutor but as a regular Additional Public Prosecutor for the court of Addl. District & Sessions Judge, Adilabad for a period of three years.
4. The petitioner presumed that just as a person from the panel for Addl. Special Public prosecutor was appointed as Public Prosecutor the Government mighit appoint an advocate from the similar panel (sent up for appointment of Special Public Prosecutor), as Public Prosecutor. The grievance is that the panel submitted by the District & Sessions Judge was for appointment of Special Public Prosecutor and it necessarily contains the names of advocates who had more than 10 years standing at the bar. The petitioner submits that if the notification had been issued for the appointment of Public Prosecutor, the petitioner could have applied as he had completed 7 years at the bar. He submits that inasmuch as the notification was for the appointment of Sepcial Public Prosecutor and the requisite standing was 10 years, the petitioner could not submit his bio-data. According to him, if the notification had been given for appointment of Public Prosecutor he would have had a chance for submitting his bio-data for consideration by the District & Sessions Judge and then by the Government. The petitioner apprehends that the appointment that is now being made is for 1 he office of Public Prosecutor and that if an appointment is made thereto from out of the panel sent by the District & Sessions Judge for the office of Special Public Prosecutor, the petitioner would not have the opportunity of having his name considered for the appointment of the Public Prosecutor. The petitioner therefore seeks the issuance of a writ to the Government to notify the proposed appointment of a Public Prosecutor and call for fresh panel from the District & Sessions Judge.
5. The learned single Judge dismissed the writ petition stating that the petitioner has no vested right for appointment as a Public Prosecutor and he cannot maintain the writ petition. It is against this order that the present writ appeal is preferred.
6. We have heard the learned counsel for the appellant Sri B. V. Bakshi and also Mr. M. Ramaiah, the learned Government Pleader.
7. Section 24 of the Code of Criminal Procedure, 1973 deals with the appointment of Public Prosecuter. Sub-section (1) deals with the appointment of Public Presecutors in the High Court. So far as the District Court6 are concerned, it is stated in Sub-section (4) of Section 24 I hat the District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the District. Sub-section (7) of Section 24 stipulates that 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 had been in practice as an advocate for not less than 7 years. Sub-section (8) of Section 24 states that the Central Government or the State Government may appoint, for the purpose of any case or class of cases, a person who has been in practice as an advocate for not less than 10 years as a Special Public Prosecutor. From the aforesaid provisions, it is clear that while standing of not less than 7 years is sufficient for a person to be appointed as Public Prosecutor or as Additional Public Prosecutor, a standing of not less than 10 years is required for appointment as Special Public Prosecutor. In the present case, the petitioner wants that a fresh notification for appointment as Additional Public Prosecutor be issued by the Government so that he, with 7 years standing, could submit his bio-data to the District & Sessions Judge. The petitioner apprehends that if any appointment as Public Prosecutor is made out of the panel already submitted by the District & Sessions Judge for the appointment of Spcial Public Prosector, the petitioner cannot have his case considered for appointment inasmuch as the advocates, whose names have already been included in the panel for appointment as Special Public Prosecutor have standing of not less than 10 years.
8. In our view, the provisions of Section 24 do not prescribe that the District & Sessions Judge should notify to the Bar Association and receive bio-data or applications from Advocates who are desirous of being included in the panel for the appointment of Public Prosecutor. No doubt, in practice it appears to us that several District & Sessions Judges are issuing notifications calling upon advocates with particular standing to submit their bio-data for being considered for inclusion in the panel of names for appointment as Public Prosecutors. In our view, such practice has to be deprecated not only because it is not (sic)saneioned by Section 24 but also because for appointment of a professional person for rendering service to the State, no advocate can, under the rules made Under Section 49 (1) (c) of the Advocates Act, 1961 by the Bar Council of India, apply for appointment on solicit work. Rule 36 of the Rules framed by the Bar Council clearly states that an advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications etc., It has also been held by Chinnappa Reddy, J. (as he than was) in Krishanavataram v. the Slate of A.P., 1969 (2) APLJ 352.
" Now, a Public Prosecutor is appointed by the Government in exercise of powers Under Section 492 of the Criminal Procedure Code. The choice is that of the Government and none can claim a right to be appointed. That must necessarily be so because it is a position of great trust and confidence."
In that context, it would not be proper for the District & Sessions Judges to issue notification inviting bio-data from the Advocates for consideration of being included in the panel for the apointment of Public Prosecutor. That would indirectly amount to asking the Advocates to solicit work from the Suite. The proper procedure in our opinion, would be for the District & Sessions Judges to obtain bio-data from such of the advocates whom they consider to be fit for appointment as public prosecutor and send a panel of eligible candidates on that basis rather than call for bio-datas from all advocates having a particular standing.
9. Therefore, it follows that the petitioner has no right to seek the issuance of the notification eitherfrom the Government or from the District and Sessions Judge to enable him to submit his bio-data for being included in the panel for appointment as public prosecutor. The petitioner has neither a legal right nor a vested right. It will be for the District & Sessions Judge to call for bio-data from such of the persons whom he thinks fit for being included in the panel for appointment as public prosecutor.
10. With the above remarks, the writ appeal is dismissed. No Costs.