Andhra Pradesh High Court - Amravati
K Balasubrahmani vs State Of Andhra Pradesh, on 5 November, 2019
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.17283 OF 2019
ORDER:
This writ petition under Article 226 of Constitution of India is filed by K. Balasubrahmani, E. Bhaskaraiah, R. Arunakumari and Y. Suhasini, who are practicing advocates in Nellore District, to declare the action of the respondents in issuing impugned proceedings in ZNR 151 GR 1000 No.1001188/B2/2019 dated 14.10.2019 thereby terminating the petitioners from the post of Additional Public Prosecutor for the I Additional District and Sessions Judge's Court, Nellore, III Additional District and Sessions Judge (FT) Court, Nellore, Family Court-cum-VI Additional District and Sessions Court, Nellore and VII Additional District and Sessions Judge Court, Gudur, respectively and without appointing any new Additional Public Prosecutors from the Panel as contemplated under Section 24 of Cr.P.C and directing the respondents to assume charge from the petitioners is highly illegal, arbitrary and against all canons of fair play and natural justice and consequently direct the respondents to continue these petitioners as Additional Public Prosecutors in the respective Courts, till the appointment of new Additional Public Prosecutors from the panel.
The petitioner No.1 was appointed as Additional Public Prosecutor vide proceedings G.O.Rt.No.338 dated 24.05.2016 for the Court of I Additional District and Sessions Judge, Nellore, SPSR Nellore District for a period of 3 years from the date of taking charge of post; the petitioner No.2 was appointed as Additional Public Prosecutor vide proceedings G.O.Rt.No.907 dated MSM,J WP_17283_2019 2 06.08.2015 for the Court of III Additional District and Sessions Judge's Court, Fast Track, Nellore, SPSR Nellore District for a period of 3 years from the date of taking charge of post. The petitioner No.3 was appointed as Additional Public Prosecutor vide proceedings G.O.Rt.No.40 dated 22.01.2016 for Family Court- cum-VI Additional District and Sessions Judge, Nellore, SPSR Nellore District for a period of 3 years from the date of taking charge of post and the petitioner No.4 was appointed as Additional Public Prosecutor vide proceedings G.O.Rt.No.293 dated 30.04.2016 for the Court of VII Additional District and Sessions Judge, Gudur, SPSR Nellore District for a period of 3 years from the date of taking charge of post. Ever since, the petitioners are discharging their duties as Additional Public Prosecutors to the utmost satisfaction of the concerned Court and litigant public.
As the petitioners completed their period successfully i.e. three (3) years tenure, respondent Nos.1 and 2 were pleased to extend term of the petitioner Nos.1 & 4 vide G.O.Rt.No.454 dated 30.04.2019 and the term of the petitioner Nos.2 & 3 vide G.O.Rt.No.475 dated 09.05.2019 upto three months beyond their date of completion of term or till the Additional Public Prosecutors are appointed by the Government, whichever is earlier.
While the petitioners are discharging their duties, to their utter dismay, the respondent No.2 issued impugned proceedings by way of radio message through proceedings in ZNR 151 GR 1000 No.1001188/B2/2019 dated 14.10.2019, thereby terminated the petitioners from their service, as Additional Public Prosecutor while placing respondent Nos.3 and 6 as Full Additional Charge of the post of the petitioners. The action of respondent No.2 is highly MSM,J WP_17283_2019 3 illegal, arbitrary and against all canons of fair play and natural justice and also violation of procedure contemplated under Section 24 of Criminal Procedure Code (for short "Cr.P.C.").
Section 24 of Cr.P.C. provides procedure to be followed for appointment of Public Prosecutors in High Court and District Courts by the Central Government or State Government. The petitioners were appointed by the State Government as Additional Public Prosecutor for the District Courts under sub-section 3 of Section 24 of Cr.P.C. Sub-section (4) of Section 24 of Cr.P.C. requires the District Magistrate to prepare panel of names of persons considered fit for such appointments in consultation with Sessions Judge, whereas sub-section (5) contains an embargo against appointment of any person as Public Prosecutor or Additional Public Prosecutor for the District by the State Government unless his name appears in the panel prepared under the sub-section 4. Sub-section (6) of Section 24 of Cr.P.C. provides for such appointments where in a State there exist regular cadre of prosecuting officers but when no suitable person is available in such a cadre, then the appointment has to be made from the panel of sub-section (4).
It is contended that, though, separate procedure is prescribed, without following the procedure prescribed under Section 24 of Cr.P.C. and for no valid reason whatsoever, at the will and pleasure of respondent Nos.1 and 2, the services of the petitioners were terminated while placing respondent Nos.3 to 6 in Full Additional Charge, who are Public Prosecutor in Principal District & Sessions Judge Court; Grade-I Additional Public Prosecutor in VIII Additional District and Sessions Judge Court, MSM,J WP_17283_2019 4 Nellore; Grade-II Additional Public Prosecutor in Principal Assistant Sessions Court, Nellore and Additional Public Prosecutor in Principal Assistant Sessions Court, Nellore, respectively. Thus, they are not fit to take the charge of Additional Public Prosecutors in District Courts in view of their limited experience in conducting prosecutions in Additional Sessions Courts. The petitioners were discharging their duties in the District Courts dealing with trial of sessions cases including bail applications, anticipatory bail applications, but the respondent Nos.3 and 4 never dealt with trial of murder cases punishable with capital punishment and anticipatory bail applications. Therefore, directing respondent Nos.3 and 4 to take charge from the petitioners and to conduct prosecutions may result in chaos and it is against the interest of general public. Therefore, the order passed by the respondent Nos.1 and 2 terminating the petitioners by sending radio message is arbitrary and against the purport of Section 24 of Cr.P.C.
The main endeavour of the learned counsel for the petitioner is that, putting an end to the office of Additional Public Prosecutors, without appointing the Additional Public Prosecutors from the panel sent to the Government by the District Collectors for consideration is an arbitrary exercise of power and thereby, these petitioners are entitled to continue in the office till appointment of regular Additional Public Prosecutors from the panel submitted by the District Collector to the Government.
No doubt, the petitioners are entitled to continue in the office of Additional Public Prosecutors, subject to Government order. The Principal Secretary to the Government issued G.O.Rt No.454 dated 30.04.2019 and G.O.Rt No.475 dated 09.05.2019 in the name of MSM,J WP_17283_2019 5 the Governor of Andhra Pradesh, extending the tenure of the petitioners as Additional Public Prosecutors for a period of three months beyond their date of completion of term or till the Additional Public Prosecutors are appointed by the Government, whichever is earlier. Therefore, G.O.Rt.No.454 dated 30.04.2019 and G.O.Rt.No.475 dated 09.05.2019 are extracted hereunder for better appreciation of the case.
G.O.Rt.No.454 dated 30.04.2019 and G.O.Rt.No.475 dated 09.05.2019 were issued by the Principal Secretary to Government in the name of the Governor of Andhra Pradesh extending the services of the petitioners.
G.O.Rt.No.454 dated 30.04.2019 reads as follows:
HOME (COURTS.A) DEPARTMENT G.O.Rt.No.454 Dated 30.04.2019 Read the following From the Director of Prosecutions (FAC), A.P., Vijayawada, Letters No.856775/A2/2019 dated 03.04.2019, 850643/A2/2019 Dt.08.04.2019, 857054/A2/2019, dt.03.04.2019 & 842765/A2/2019 dt.20.03.2019.
ORDER:
In the circumstances reported by the Director of Prosecutions (FAC), in the references read above, Government, after careful examination, hereby order to continue the services of the following Addl. Public Prosecutors (Tenure), up to three (3) months beyond their date of completion of term or till the Addl. Public Prosecutors are appointed by the Government, whichever is earlier.
Sl .No. Name of the Addl. Appointed G.O Date from Public Prosecutor & Further which (Tenure) & Court extension G.O. further Sri/Smt. & date continuation of services is proposed 1 Smt. Y. Suhasini, 293, 30.04.2016 08.05.2019 Court of VII ADJ, Gudur, SPSR Nellore District 2 K. Balasubramani, I 338, 24.05.2016 25.05.2019 ADJ Court, Nellore, SPSR Nellore District The Director of Prosecutions (FAC), Andhra Pradesh, Vijayawada is requested to take necessary follow up action in the matter. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) MSM,J WP_17283_2019 6 G.O.Rt.No.475 dated 09.05.2019 reads as follows:
HOME (COURTS.A) DEPARTMENT G.O.Rt.No.475 Dated 09.05.2019 Read the following
1. From the Director of Prosecutions (FAC), A.P., Vijayawada, Letters No.711812/A2/2019 dt.26.04.2019, 788741/A2/2019 Dt.30.04.2019, 7773668/A2/2019, Dt.17.04.2019 & 783591 dt.30.04.2019
2. Letter from Sri D. Nagaraju, Addl. P.P, ASJ Court, Penukonda, Anantapuramu District, dt.24.04.2019.
ORDER:
In the circumstances reported by the Director of Prosecutions (FAC), in the reference 1st read above, and application for further continuation received in the reference 2nd read above, Government, after careful examination, hereby order to continue the services of the following Addl. Public Prosecutors (Tenure), up to three (3) months beyond their date of completion of term or till the Addl. Public Prosecutors are appointed by the Government, whichever is earlier-
Sl.No Name of the Addl. Public Appointed G.O. & Date from which
Prosecutor (Tenure) & Further extension further
Court Sri/Smt G.O & Date continuation of
services is
proposed
1 R. Aruna Kumari, Family 40, 22.01.2016 & 27.04.2019
Court-cum-VI Additional 66, 22.01.2019
District & Sessions Judge,
Nellore
2 Sri E. Bhaskaraiah, 907, 06.08.2015 10.05.2019
III ADJ Court (FTC), Nellore 706, 02.08.2018
1002, 02.011.2018
205, 19.02.2019
The Director of Prosecutions (FAC), Andhra Pradesh, Vijayawada is requested to take necessary follow up action in the matter.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) Radio message received from Director of Prosecutions, Vijayawada, Andhra Pradesh is as follows:
From : Director of Prosecutions, Vijayawada, Andhra Pradesh No.1001188/B2/2019 Date 14.10.2019 In pursuance of Government Memo No.2330/COURTS.A/A1/2019 dated 11.10.2019 of Home (Courts-A) Department, the Additional Public Prosecutors mentioned at Col.No.4 is placed as incharge to the post of Sessions Courts mentioned at Col.No.3 in view of the completion of term of Additional Public Prosecutors mentioned at Col.No.2, until further orders by the Government. The officers mentioned at Col.No.4 are instructed to assume the charge of the said posts and intimate date of assuming charge immediately. Proceedings follows:
MSM,J WP_17283_2019 7 Sl.No Name of the Prosecutor Name of the Court Incharge Prosecuting Officer 1 Sri K. Balasubramanyamani, I Additional Public Prosecutor, Additional Public Prosecutor District and Principal District and Sessions Judge Sessions Judge Court, Court, Nellore Nellore 2 Sri E. Bhaskaraiah, III Additional Additional Public Additional Public Prosecutor District and Prosecutor Grade-I, Sessions Judge VIII Additional District (FT) Court, Nellore and Sessions Judge Court, Nellore 3 Smt. R. Aruna Kumari Family Court-cum- Additional Public Additional Public Prosecutor VI Additional Prosecutor Grade-II, District and Principal Assistant Sessions Court, Sessions Judge Court, Nellore and VII Nellore Additional District and Sessions Judge Court, Gudur 4 Smt. Y. Suhasini Assistant Sessions Additional Public Additional Public Prosecutor Judge Court, Prosecutor Grade-II, Kovvur Assistant Sessions Judge Court, Kavali As seen from the orders of extension, the tenure of the petitioners as Additional Public Prosecutors was extended by a further period of three months only. But, after completion of three months only, the Director of Prosecutions, Vijayawada, issued radio message by arranging the in-charge Prosecuting Officers to take charge of the office of Additional Public Prosecutors. The basis for issue of such memo is the executive instructions issued by the Government. However, learned counsel for the petitioner demonstrated that appointment for the cadre of Public Prosecutor who are discharging their duties in various courts referred above, will seriously affect the interest of the victims and accused also.
Therefore, appointment of the cadre Public Prosecutor or placing them as in-charge is prejudicial to the interest of public at large and that the petitioners are not concerned about their period of tenure as Additional Public Prosecutors, but more concerned about the interest of the public at large. If the petitioners are questioning the appointment on the ground that such in-charge arrangement MSM,J WP_17283_2019 8 would seriously affect the interest of the public at large, the remedy is elsewhere, but not before this Court, when the injury to the public is apprehended injury is challenged, the petitioners have to file public interest litigation under Article 226 of the Constitution of India. In any view of the matter, three months period is completed by the date of issuing order by Respondent No.2/Director of Prosecutions, Vijayawada. Therefore, the petitioners have no right to continue in their respective posts as Additional Public Prosecutors.
Sri Sita Ram Chaparla, learned counsel for the petitioners contended that, earlier, this Court set-aside the order passed by the Director of Prosecutions in W.P.No.16543 of 2019 dated 30.10.2019. But, the same cannot be applied to the present facts of the case, for the reason that, in earlier W.P.No.16543 of 2019 dated 30.10.2019, the facts of the case are distinguishable from the facts in the above judgment, for the reason that, extension of tenure of Additional Public Prosecutors in W.P.No.16543 of 2019 was until further orders or till appointment of regular Public Prosecutors. But, here, the petitioners' services as Additional Public Prosecutors were extended for limited purpose of three months. That too, the order was passed only after completion of three months time. Therefore, the principle laid down in the above judgment cannot be applied to the present facts of the case, as the term of Additional Public Prosecutors was already expired and the petitioners are not entitled to claim any right to continue in the office and they cannot challenge the orders before this Court without invoking pro bono public jurisdiction of a competent court, on the ground that this order is prejudicial to the interest of MSM,J WP_17283_2019 9 victims and accused in many cases. Hence, I find no merit in this writ petition and it deserves to be dismissed.
In the result, writ petition is dismissed.
Consequently, miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:05.11.2019 sp MSM,J WP_17283_2019 10 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION NO.17283 OF 2019 Date:05.11.2019 sp