Gujarat High Court
Bipinkumar Ganpatbhai Solanki vs State Of Gujarat & 3 on 27 October, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/5792/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 5792 of 2015
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BIPINKUMAR GANPATBHAI SOLANKI....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR HJ DHOLAKIA, ADVOCATE for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 27/10/2015
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the petitioner-original complainant, has prayed for the following reliefs;
"(A) This Hon'ble Court be pleased to admit and allow the present petition.
(B) This Hon'ble Court be pleased to direct the concerned respondent authority to appoint eminent Senior Advocate in the list given by the petitioner in the application filed before them in the interest of justice.
(C ) This Hon'ble Court be pleased to direct the respondent authority to implement notification no.G.S.R. 316(E) dated 31/3/1995 and which was republished in State Government Gazette vide Notification No.CHTH-98- 08-HSL-1197-4040-H dated 19/5/1998.
(D) This Hon'ble Court be pleased to grant any other and further relief/s as may be deemed fit in the fact and circumstances of the case."
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2. The issue, in my view, is squarely covered by judgment and order dated 17th October, 2014 passed by a learned Single Judge of this Court in Special Criminal Application No.1699 of 2008. I may quote the relevant observations made by the learned Single Judge as under;
"8. Mr. Joshi, learned advocate appearing for the original complainant petitioner fervently urged that the whole directives and purpose behind the notification of the Central government has been defeated by the State Government by taking the stand that Additional Public Prosecutors having more than 7 years of practice since are notified to be Special Public Prosecutors for the purpose of conducting the cases in all Special Courts of Gujarat, this is in due compliance of such notification. He took the Court not only to the object enshrined in the Constitution of India but also the decision of the Apex Court rendered in the case of Shastri Yagnapurushdasji and others v. Muldas Bhundardas Vaishya and another reported in AIR 1966 SC 1119, where the Court had held that the untouchability is found on superstition, ignorance and complete misunderstanding of the true teachings of Hindu religion. He urged that the State Government itself has framed the rules. The Central Government has come out with a notification dated 31st March, 1995 and despite the continuous efforts made by the present petitioner, no appointment is made as desired. He urged that it is not a case of the petitioner paying or the Government obliging by appointing somebody. It is a matter of right, which flows from the Constitution, and thereafter the Central Government, having recognized such need, on the basis of the rules framed under the Atrocities Act.
9. Per contra, learned Additional Advocate General Mr. Jani appearing for the State, at the outset, had requested the Court that as may be desired by the petitioner, the State Government would appoint any of the Additional Public Prosecutors working at the District of Banaskantha. Otherwise, the main plank of submission Page 2 of 15 HC-NIC Page 2 of 15 Created On Thu Oct 29 01:22:10 IST 2015 R/SCR.A/5792/2015 ORDER was that those who are found fit to be appointed as Public Prosecutors, for all other purposes are rightly found to be appointed as Special Public Prosecutors. According to him, they have been conferred with serious and important duties where the person can be also be sent to gallows. In the existing structure when is given an additional responsibility to them, there is no reason to be doubtful about their performance. It is further urged that if specially for the purpose of conducting trial under the said Act only if appointment is made, possibility may not be ruled out that those Court officers would be free and that would be a sheer waste of potentials of the professionals. Moreover, according to him, Indian Penal Code is an Act prevalent all over India and the State can amend it with the permission of the President. There is no amendment in Gujarat which diluted the requirement of sections 24 and 25 of the Indian Penal Code. In the State of Gujarat while appointing Additional Public Prosecutors, the parameters of the appointment are more stricter, and therefore, if they are placed to conduct those matters, under the Atrocities Act, the same should be construed as an appointment with more rigorous processes.
10. Learned Additional Advocate General has further urged that the provision of the Act would have primacy over the rules. He sought to rely upon the decision of the Karnataka High Court in the case of Gulzar Khan v. State of Karnataka and another reported in 2001 CRI.L.J. 3586.
11. On thus hearing both the sides and on due consideration of elaborate submissions of both the sides, at the outset, relevant provisions would require consideration.
12. Under the Code of Criminal Procedure the appointment of Public Prosecutor is provided under section 24, which states that for every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint Public Prosecutor and may also appoint one or more Public Prosecutors for conducting the appeal or other proceedings in such Court on behalf of the Central Government or the State Government.
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13. For every District, State Government shall appoint a Public Prosecutor and may appoint more Additional Public Prosecutors for the District. The District Magistrate is required to prepare Panel of names of persons, who are fit to be appointed as Public Prosecutors in the opinion of the District Magistrates, in consultation with the Sessions Judge. Unless the name of a person appears in the Panel of names prepared by the District Magistrate, the State Government cannot appoint such person to be Public Prosecutor or the Additional Public Prosecutor. The eligibility prescribed for the appointment as a Public Prosecutor or as Additional Public Prosecutor under sub- sections (1),(2),(3) or (6) of section 24 is when a person has practiced, as an advocate, for not less than 7 years. Section (8) provides that either the Central Government or the State Government may appoint, for purposes 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. The Court may also permit the victim to engage an advocate to assist the prosecution. Section 25 of the Code is in respect of the Assistant Public Prosecutors who are to be appointed in every District for conducting the prosecutions in the Court of Magistrates. The Directorate of Prosecution is provided under section 25A of the Code where the State Government is required to establish the Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it may think fit. Chapter IV of the Atrocities Act provides for the Special Court. Section 14 provides that for the purpose of providing speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each District, a Court of Session to be a Special Court. The State Government has been empowered to specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for seven years as a Special Public Prosecutor for every Special Court. Reference would be also necessary to the rule making powers under this Act. Section 23 provides for empowering the Central Government to make the Rules for carrying on the purpose of this Act by a Notification in the Official Gazette. Sub-section (2) of section 23 states that every rule made under this Act shall be laid, as soon as after it is made, before each house of Parliament while it is in session. Thus these rule making powers are given to the Page 4 of 15 HC-NIC Page 4 of 15 Created On Thu Oct 29 01:22:10 IST 2015 R/SCR.A/5792/2015 ORDER Central Government and every rule made under this provision is to be laid before each house of the Parliament. Pursuant to such powers, Notification had been issued by the Central Government making such rules on 31st March, 1995.
14. This Notification provides that the rules are made under sub-section (1) of section 23 of the Atrocities Act. Rule 4 provides for supervision of prosecution and submission of report. The State Government on the recommendation of the District Magistrate shall prepare for each District a panel of such number of eminent Senior Advocates, who have been in practice for not less than seven years as it may deem necessary for conducting the cases in the Special Courts in consultation with the Director of Prosecution, a penal of such number of the Public Prosecutors as it may deem necessary for conducting cases in the Special Court shall also be specified. Such panels shall be notified in the Official Gazette of the State and shall remain in force for a period of three years.
15. Sub-Rule (2) of Rule 4 provides review of performance of Special Public Prosecutors so specified or appointed by the District Magistrates at least twice in a calender year. Report to that effect needs to be submitted to the State Government by the District Magistrates. The powers of de-notification also are given to the State Government, if it is of the opinion that person so appointed has not delivered to the best of his ability and not taken due care and caution.
16. Sub-Rule (4) of Rule 4 provides for review of position of cases registered under the Act and submit a monthly report on or before 20th day of each subsequent month to the Director of Prosecution and State Government by the District Magistrates. This report shall specify the actions taken/proposes to be taken in respect of investigation and prosecution of each case. The District Magistrate or the Sub-Divisional Magistrate may, if deem necessary, or if so desired by the victims of atrocity, engage an eminent Senior Advocate for conducting cases in the Special Courts on such payment of fee, as he may consider appropriate. The payment of such fees to the Special Public Prosecutor shall be fixed by the State Page 5 of 15 HC-NIC Page 5 of 15 Created On Thu Oct 29 01:22:10 IST 2015 R/SCR.A/5792/2015 ORDER Government on a scale higher than the other panel advocates in the State.
17. These rules provide for setting up of an Scheduled Castes and Scheduled Tribes Protection Cell for the purpose of conducting various tasks like conducting survey of the identified area, maintaining public order and tranquility in the identified area, recommending to the State Government for deployment of special police force; for making investigation about the probable causes leading to an offence under the Act etc. The State Government shall nominate a nodal officer of the level of Secretary to the State Government preferably belonging to the Scheduled Castes or the Scheduled Tribes, for co- ordinating the functioning of the District Magistrate and Superintendent of Police or other officers authorized by them.
18. It could thus be noticed from the introduction and the statement of object and reasons of the Atrocities Act that in spite of various steps taken to ameliorate the conditions of the Scheduled Castes and Scheduled Tribes, they continue to suffer indignities, humiliations and harassment. Through spread of education some awareness has been created amongst them and they have been trying to assert their rights. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interest try to cow them down and terrorise them. In wake of increase in the disturbing trend of commission of certain atrocities, the normal provisions of the existing laws like the Protection of Civil Rights Act, 1955 and the Indian Penal Code were found to be inadequate to check such atrocities. Therefore, a special enactment was deemed necessary for checking and deterring the crimes against the people of the Scheduled Castes and Scheduled Tribes.
19. The word atrocity which was not defined before, came to be defined with the stringent measures to provide for higher punishment for committing such atrocities. Various preventive and punitive measures for protecting the Scheduled Castes and Scheduled Tribes from being victimized were undertaken in the form of enactment which also provides for adequate relief and Page 6 of 15 HC-NIC Page 6 of 15 Created On Thu Oct 29 01:22:10 IST 2015 R/SCR.A/5792/2015 ORDER assistance for rehabilitating them.
20. Sub-section 1(a) of section 2 of the Atrocities Act states that the term Atrocity means an offence punishable under section 3. Chapter II under the heading Offences of Atrocities provides for punishment of offences for atrocities. It will not be necessary for this Court to go into the details of these definitions as the scope of this petition is different. However, it was found necessary to touch upon the object and reasons and the offences for atrocities which are made punishable to highlight the fact that the very reason of bringing this Act into existences was the continuation of perpetration of cruelty upon the people belonging to the Scheduled Castes and Scheduled Tribe, despite the availably of the law and in spite of the many measures adopted to improve their socio-economic plights. Resistance on their part to practice of untouchability and assertion of their rights when was found to be resisted, with a view to cow them down and in blatant disregard to the other prevailing laws, the special provisions are made for protecting and safeguarding their interests.
21. In such a background, for the purpose of providing speedy trial, the State Government has been empowered to specify for each District, a Court of Sessions to be a Special Court to try the offences with the concurrence of the Chief Justice of the States. By notification in the Official Gazette, the State Government is empowered to specify a Public Prosecutor or appoint an advocate, who has been in practice for not less than 7 years as a Special Public Prosecutor.
22. It is true that the requirements of these provisions under sections 14 and 15 are the establishment of the Special Court and an appointment of a Special Public Prosecutor., An advocate, who has been in practice for not less than 7 years is competent to be appointed as a Special Public Prosecutor. However, the rule making powers provided under section 23 empowers the Central Government to make the Rules for fulfilling the purposes of this Act. Such rules, when made, are to be laid before both the Houses of Parliament and shall need to be notified in the Official Gazette.
23. The rules made in exercise of powers conferred by Page 7 of 15 HC-NIC Page 7 of 15 Created On Thu Oct 29 01:22:10 IST 2015 R/SCR.A/5792/2015 ORDER sub-section (1) of section 23 of the Atrocities Act by the Central Government provide for additional requirement under sub-Rule (1) of Rule 4, the onus is on the State Government to prepare a panel of such number of eminent Senior Advocates, who have been in practice for not less than 7 years on the recommendation of the District Magistrate for each District for conducting the case in the Special Court. Similarly, in consultation with Director of Prosecution, a panel of such number of Public Prosecutors also should be specified and both these panels are to be notified in Official Gazette to remain in force for a period of three years.
24. With a non-obstante clause Sub-rule(5) of Rule 4 provides that if the District Magistrate or the Sub- Divisional Magistrate deem necessary or if so desired by the victims of atrocity, engage an eminent Senior Advocate for conducting cases in Special Court on such payment of fees as he may consider appropriate. So either at the behest of District Magistrate or if desired by the victim of atrocity, an eminent Senior Advocate can be engaged for conducting the matter in the Special Court and the fees for such advocate would be as may be considered appropriate by the District Magistrate. It is for the State Government, of course, to fix the scale of payment of fees which is to be on a scale higher than the other panel advocates in the State.
25. In light of the discussion held hereinabove, what can be culled out is that for conducing the trial under the Indian Penal Code and under any other provisions, the Public Prosecutor or the Additional Public Prosecutors are to be appointed by the District Magistrates in consultation with the Sessions Judge and prepare such panel which is to be sent to the State Government, which is required to appoint a Public Prosecutor or Additional Public Prosecutor. The Code of Criminal Procedure thus provides for an advocate having practice for not less than seven years to be included in such panel, whereas for the appointment as a Public Prosecutor or Additional Public Prosecutor for the District, the consultation with the Sessions Judge is a must. The Central Government or the State Government also is empowered to appoint for the purpose of any case or class of cases, a Special Public Prosecutor, who has been in practice as an advocate for not less than ten years. Whereas under the Atrocities Act Page 8 of 15 HC-NIC Page 8 of 15 Created On Thu Oct 29 01:22:10 IST 2015 R/SCR.A/5792/2015 ORDER for the Special Courts, the Special Public Prosecutors are to be appointed and the rule provides that the practice of such Public Prosecutors for empanelment should not be less than seven years. On recommendation of the District Magistrates and in consultation with the Director of Prosecution, such panels are to be made for each District, such number of eminent Senior Advocates are to be appointed as may be found necessary for conducting the cases in the Special Courts.
26. According to the learned Additional Advocate General, the rule when is to be laid, the same has to be in harmony with the main provisions. Section 15, when provides for an appointment of an advocate having practice for not less than seven years as a Special Public Prosecutor for the purpose of conducting the cases in the Special Court, any provision made under Rule 14 in exercise of powers of sub-section (1) of section 23 of the Atrocities Act should need to be held contrary to the main provisions.
27. It needs to be reminded, at this stage, that there is no challenge to Rule 4 of the Atrocities Act in this petition, nor is such challenge pending anywhere. Therefore, such submissions in the interpretation of the Rule and the corresponding provision may not be held sustainable. Notice also needs to be taken of the fact that when the Central Government exercises such powers under sub-section (1) of section 23 of the Atrocities Act, rules are needed to be placed before both the Houses of Parliament, which being aware of sections 14 and 15 of the Atrocities Act still chose to incorporate the provision for empanelment of eminent Senior Advocates in practice for not less than seven years for conducing the cases in the Special Court. The person having practice for seven years is the minimum requirement, as such requirement has been qualified with the adjective eminent Senior Advocates. While empaneling advocates for the purpose of trial before the Special Court, the State Government cannot be oblivious of such requirement under the rules made by the Central Government. This would assume importance, particularly, when the submission of the State Government is to be appreciated, wherein it is contended inter alia that all those who were appointed under section 24 of the Code of Criminal Procedure are appointed as a Special Public Prosecutors and that should Page 9 of 15 HC-NIC Page 9 of 15 Created On Thu Oct 29 01:22:10 IST 2015 R/SCR.A/5792/2015 ORDER be construed as sufficient compliance of Sub-Rule (1) of Rule 4 of the Atrocities Rules.
28. It is true that appointment of Public Prosecutor or Additional Public Prosecutors, as mentioned hereinabove, is on the recommendation of the District Magistrates, who make such recommendation in consultation with the Sessions Judge. Here also the person ought to have practiced for less than seven years and, who in the opinion of the District Magistrate, is fit to be appointed as Public Prosecutor or Additional Public Prosecutors for the District. It cannot be gainsaid that those appointed as Public Prosecutor or Additional Public Prosecutors are to conduct very serious nature of offences and the punishment of which also extend to capital punishment. It is not the question of questioning the capabilities or efficiency of those appointed under section 24 of the Act. The Parliament being well aware of such provision under the Code of Criminal Procedure yet chose to make the provision for Special Court and Special Public Prosecutor under the Atrocities Act, essentially keeping in mind the objects and reasons for bringing such Act into existence.
29. As discussed hereinabove, the perpetration of atrocities on the persons belonging to Scheduled Castes and Scheduled Tribes when continued, the Center was obliged to respond to such requirement of a large number of citizens, who suffered on account of any such legislation. Therefore, pursuant to such enactment, when the Rules came to be made by the Parliament, it was furthermore alive to the need of appointment of senior eminent advocate in conducting the trial as these trials would require not only the practice of seven years as an advocate but the seniority and eminence would necessarily come with years of experience. This is not to suggest that a person with less years of practice may not possess such eminence or sensitivity desirable for conducting the matters under the Special Act before the Special Court. However, with the advancement of age and practice when a person is conferred with the title of being an eminent senior advocate, such sensitivity is ingrained and inbuilt with this title. Therefore, a notification on the part of the Government of treating those appointed under section 24 of the Code of Criminal Procedure to be construed as Special Public Prosecutor for conducting the matter under the Atrocities Act cannot Page 10 of 15 HC-NIC Page 10 of 15 Created On Thu Oct 29 01:22:10 IST 2015 R/SCR.A/5792/2015 ORDER be, in the opinion of this Court, be termed as due compliance of the rule made under the Atrocities Act.
30. These reasonings could be further buttressed by Sub- Rule (5) of Rule 4 which starts with non-obstante clause and empowers the District Magistrate on his own to engage an eminent Senior Advocate for conducting the cases in the Special Court on such payment of fees, as he may consider appropriate or the said appointment can be made at the behest of the victim of atrocity by the District Magistrate. The State Government is required to fix the payment of such Special Public Prosecutor on a scale higher than other panel advocates in the State. This also further highlights the importance accorded to such appointment and the need for engaging the eminent Senior Advocate in certain cases to be conducted in the Special Court. This rule also requires the District Magistrate and the office in-charge of the prosecution at the District level to review the position of cases and submit the report to the Director of Prosecution with regard to performance of Special Public Prosecutor and the State Government can also de-notify the person, if it finds that requisite care and caution was absent in conducting the matter or that the case has not been handled with the best of the abilities. These provisions also further fortify the reasons that the person, who is appointed to conduct the cases in Special Court not only needs to be exercising the utmost due care and caution but also should perform the duties with the best of his abilities and the review of his performance is a must, twice in a year. Therefore, it can be said that all directives and purpose behind the Notification of the Central Government in framing the rules under the Atrocities Act in exercise of the powers of sub-section (1) of section 23 of the Atrocities Act would stand defeated, if the stand of the State Government is sustained. Additional Public Prosecutors having more than seven years of practice are appointed as Special Public Prosecutor pursuant to the Notification dated 31st March, 1995 for the purpose of conducting the cases in all Special Courts of Gujarat, such appointment in lieu of the appointment of eminent senior advocate on a panel cannot be said to be in fulfillment of the requirements either under the Act or under the rules made by the Central Government.
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31. In wake of foregoing discussion, on reverting back to the facts on hands it can be noticed that CR.No.I-58 of 2005 concerns the provisions 147, 148, 149,435, 504 and 506(2) of the Indian Penal Code read with section 135 of the Bombay Police Act and sections 3(1)(10) of the Atrocities Act. The complaint is given by Somabhai Karmibhai Solanki, the petitioner herein, who belongs to the Scheduled Caste. The complaint culminated into the filing of the chargesheet after the case was committed to the Sessions Court being Special Case No.61 of 2007 and the charges came to be framed.
32. The petitioner made an application to the District Magistrate on 13th June, 2008 and on 1st July, 2008 he made a request under sub-Rule (1) of Rule 4 to allow him an advocate from those appointed under the panel. However, no list since was provided to him for the purpose of conducting the special case, he made a request to engage a senior eminent advocate from the panel to be prepared under sub-rule (1) of Rule 4, the reply to which was received by him on 25th July, 2008, inter alia, stating that no such panel has been prepared.
33. The affidavit-in-reply of the Joint Secretary, Legal Department also says that a letter of District Magistrate dated 5th July, 2008 has been submitted to the Government by the Collector on 18th July, 2008. A meeting was also arranged prior to such communication on 29th March, 2008 with the Secretary, Legal Department. However, no decision relating to the preparation of the panel could be taken. He of course has stated in no uncertain terms that looking to the gravity or seriousness of the case shown by the complainant, whenever complainant requests to appoint Special Public Prosecutor in this type of cases, it would be always considered on merit. A letter was addressed by the Legal Department instructing the District Magistrates vide letter dated 21.8.2008 that as per the powers conferred to the District Magistrate under sub-Rule(5) of Rule 4, the District Magistrates can exercise the powers to conduct the matters relating to the Atrocities, if he so deems desirable. Pursuant to such communication, no proposal was received from the District Magistrates and vide Notification dated 24th April, 1996, the Legal Department Page 12 of 15 HC-NIC Page 12 of 15 Created On Thu Oct 29 01:22:10 IST 2015 R/SCR.A/5792/2015 ORDER had already instructed all the District Magistrates that Additional Public Prosecutors of the District should conduct the Atrocity cases in Special Court. The District Magistrates also said that a committee was convened on 19th July, 2006 for the purpose of appointment of Senior Advocates in the panel of advocates for conducting the atrocity cases. It was noticed that nine Courts are functioning where the matters relating to the atrocities are conducted. At present, the Public Prosecutors are conducting such matters at Palanpur, Deesa. Almost in all cases and there would be no necessity to prepare a panel of eminent senior advocates and the report was accordingly submitted to the Legal Department, which advised it to exercise the powers under sub-Rule(5) of Rule 4.
34. It further says that if the aggrieved party desires, the matter will be further considered. Unmindful of the provision of sub-rule (6) of Rule 4 where payment of the fees of the Special Public Prosecutor is to be fixed by the State Government. The victim of the atrocity, who makes a request and at whose behest the appointment of eminent senior advocate is to be made by the District Magistrate cannot be saddled with the liability of payment of fees. It is never contemplated either under the Act or the Rules. It is surprising as to how the affidavit of Additional District Magistrate, Palanpur make such a proposition in complete disregard to the very objects and reasons. It is not a case of the State Government that in any appointment made under sub- rule (5) of Rule 4, the payment is directed by the victim. In any case without much emphasizing on the insensitivity on the part of Additional District Magistrate, Palanpur in filing such affidavit, it would be sufficient to note, at this stage, that District Magistrate also failed in exercising the required powers given under sub-rule (5) of Rule 4. If there was a request that had come for engaging an eminent advocate, it could have taken such a decision considering the seriousness of the crime either on his own or at the behest of the victim. He chose to do neither and thereafter merely forwarded the same to the Legal Department, which also, banking upon the earlier notification of 1996, construed the same as due compliance of the requirement of the rules made in exercise of the powers conferred under the Atrocities Act.
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The Special Case of the year 2007, till date, has not been proceeded with only on account of this impasse, which, in the opinion of this Court, is absolutely a sorry state of affairs."
3. Mr. Pandya, the learned APP, submitted that the judgment and order referred to above is proposed to be challenged before the Supreme Court. However, he made it clear that till this date, no order has been passed by the Supreme Court staying the operation of the judgment. In that view of the matter, the judgment delivered by a Coordinate Bench would be binding to me.
4. In the result, this application is allowed. The District Collector, Ahmedabad is directed to appoint an eminent senior advocate in Special Case No.56 of 2014 pending before the Special Judge, Ahmedabad (Rural) within eight weeks of the receipt of this order. The Legal Department is also directed to implement the Notification No. GSR.316(E) dated 31st March, 1995 to be republished in the Government Gazette of the State Government vide Notification No.CHTH-98-08-HSL-1197-4040- H dated 19th May, 1998 and consider the implementation of such order keeping in view its purpose and objective and take a policy decision accordingly.
5. With the above, this petition is disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.)
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Vahid
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