IN THE GAUHATI HIGH COURT

CASE NO: WP(C)/7225/2017

JYOTIRMOY DAS AND ORS VS STATE OF ASSAM AND ORS

IN THE COURT OF HONOURABLE MR JUSTICE KALYAN RAI SURANA

The Gauhati High Court has ruled that the appointment of six more public prosecutors in 2017 was arbitrary and based on political involvement. According to the Court, the Additional District Magistrate simply forwarded names sponsored by a Patharkandi MLA and an updated list of advocates supplied by the Bharatiya Janata Party, Karimganj District Committee.

The Gauhati High Court has set aside a 2017 notification appointing six Additional Public Prosecutors for courts in Karimganj, Assam. The Court found that the appointments appeared to have been made as per recommendations made by an MLA and a political party in power at the time. The Judge relied on the Supreme Court’s ruling in State of UP & Anr. v. Johri Mal, which had emphasised that appointments to posts such as that of the APP must not be political.

The court opined that there was a violation of Section 24(4) of the Criminal Procedure Code (CrPC), which requires the District Magistrate to prepare a panel of names of persons considered fit for such appointments, in consultation with the Sessions Judge.

It found that while recommending the appointment of these APPs to the Assam government, the District magistrate held no consultation. with the District and Sessions Judge, Karimgansj.

FACTS OF THE CASE

The decision was reached in a writ suit filed by lawyers who had previously served as Assistant Public Prosecutor (APP) in various Karimganj courts before being ousted and replaced in 2017.  The issue raised in this writ petition is of considerable public importance.

The petitioners claimed to the Court that their names were also on a list of panel counsel compiled in 2017 and forwarded to the government in Karimganj for appointment as Government Pleader, Assistant Government Pleader, Public Prosecutor, Additional Public Prosecutor, and Assistant Public Prosecutor.

The list supplied by the District Magistrate to the Assam government, however, was discovered to be different from the list created and provided to the District Magistrate by the District and Sessions Judge.

The Court, on the other hand, found value in the petitioners’ position, taking into consideration the District and Sessions Judge’s sworn statement that there were no records indicating any communication with his predecessor before the names were sent by the District Magistrate.

On November 5, 2016, the names provided to the then-District and Sessions Judge were discovered to be based on political suggestions. The names of the petitioners were included in a letter issued to the District Magistrate on November 9, 2016, by the then-District and Sessions Judge.

CONTENTION OF THE PARTIES

The respondents argued that the case is not maintainable for misjoinder of parties:-

One of the arguments used to oppose this writ petition was that all of the petitioners were misjoined. In light of the fact that all of the petitioners’ names were included in the list forwarded by respondent no. 3 to respondent no. 2, it cannot be said that none of the petitioners was aggrieved by the non-inclusion of their names in the panellist prepared by respondent no. 2, which led respondent no. 1 to reject the petitioner’s candidacy.

Therefore, the contention of the learned senior counsel for the respondent nos. 4 to 7 and 9 that the writ petition would not be maintainable as all the petitioners were not the persons aggrieved, fails and accordingly, the writ petition cannot be held to be bad by misjoinder of any petitioner. Resultantly, this writ petition is found to be maintainable at the instance of the petitioners, as they are the aggrieved parties.

The case of the petitioners, in brief, is that they were holding the post of Additional Public Prosecutors (‘A.P.P.’ for short) in different Courts in Karimganj District. By virtue of notification dated 10.11.2017 issued by the Legal Remembrancer-cum-Commissioner & Secretary to the Govt. of Assam, Judicial Department, the services of four out of six petitioners were relieved and the private respondent nos. 4 to 8 were appointed to the said post. Accordingly, the aggrieved petitioners have filed this instant writ petition.

OBSERVATION OF THE COURT AND JUDGEMENT

The State Government must designate a Public Prosecutor for each district and may additionally appoint one or more Additional Public Prosecutors for the district, according to Subsection (3) of Section 24 Cr.P.C. In conjunction with the Sessions Judge, Subsection (4) of Section 24 Cr.P.C. requires the District Magistrate to prepare a panel of names of persons judged fit for such appointments. The State Government is prohibited from appointing any person as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel prepared under sub-section (5) of Section 24 Cr.P.C. (4).

Where a State has a normal Cadre of Prosecuting Officers but no eligible person is available in that cadre, the appointment must be made from the panel constituted under sub-section (6) of Section 24 Cr.P.C. (4). Section 24 Cr.P.C., sub-section (7), states that a person is only qualified for such an appointment if he has practised as an advocate for at least seven years. Section 25 governs the appointment of Assistant Public Prosecutors in the district to prosecute cases in Magistrate Courts.

In the case of Johri Mal (supra), a three-judge bench of the Supreme Court of India stated that, under the Legal Remembrancer’s Manual of the State of Uttar Pradesh, the appointment of a Prosecutor or Assistant Public Prosecutor or a District Counsel would be of a professional nature. The Law Department Manual for the State of Assam, on the other hand, makes no such provision. As a result, the kind of appointments made in Assam for Govt. Pleader, Assistant Govt. Pleader, Public Prosecutor, Additional Public Prosecutor, and Assistant Public Prosecutor appear to be distinct from those made in Uttar Pradesh.

No form of consultation has been specified, according to the learned senior counsel for respondent nos. 4 to 7 and 9 and the learned counsel for respondent no. 8. They appear to be correct in this regard. Nonetheless, according to Section 24 of the Cr.P.C., Sub-Section (4), some form of consultation appears to be an entrenched pre-condition. A natural concern would be whether the concept of ‘consultation’ would cover the absence of any consultation or a unilateral decision by one authority after a cursory consultation with another authority.

In the present case in hand, the Addl. District Magistrate, Karimganj had merely forwarded the names sponsored by the MLA, 2 No. Patharkandi LAC vide letter dated 03.11.2016 and updated List of Advocates which does not contain even the name or designation of the signatory. In the absence of material particulars, it cannot be accepted that there was any consultation by respondent no. 2 with respondent no. 3 before forwarding the names to respondent No. 3.

The absence of any consultation is also presumed because of the existence of the communications dated 05.11, 07.11 and 09.11 2016, as referred to hereinbefore. The statement made on oath in the affidavit-in-opposition filed by the Respondent no.3 is to the effect that there was no record of consultation in making the appointment and engagement of Govt. Pleader, Assistant. Pleading Pleader, Public Prosecutor, Additional Public Prosecutor and Assistant Public Prosecutor.

In the present case in hand, the Additional Deputy Commissioner had forwarded the names of advocates for consideration of respondent no. 3. All those names were based on recommendations by political persons, being the MLA and the political party in power in the State. The affidavit-in-opposition filed by respondent No. 3 said there was no record of any consultation between his predecessor-in. office and the respondent 2.

The stand of respondent no. 2 in the letter dated 14.11.2017 is not found supported by the affidavit- in-opposition filed by respondent no 3. Thus, in light of the discussions above, the Court is constrained to hold that there was no consultation whatsoever between respondent no. 2 and respondent no. 3 before issuance of letter dated 14.11.2017 by respondent no. 2 to the respondent no. 1.

It is seen that it would be open for the High Court to exercise the power of judicial review to see whether the procedure adopted for appointment and engagement of Govt. Pleader, Assistant Govt. Pleader, Public Prosecutor, Additional Public Prosecutor, and Assistant Public Prosecutor met the test of Article 14 of the Constitution of India.

The petitioners have no right to be appointed as a State/Government Counsel. However, they can offer themselves for appointment, re-appointment or extension. Their claims ought to be considered on their merit, uninfluenced by any political or other extraneous consideration, the court said. The court was told to consider the law laid down in paragraph 49 in the case of Brijeshwar Singh Chahal (supra).

Thus by taking all the above-mentioned facts and precedents into account, the court held that the State, being the largest litigant, would be put to immense difficulties to manage the civil, criminal and revenue cases in Karimganj District. The Court is inclined to provide that the State Government may continue with the present arrangement for a period of 6 (six) weeks from the date of this order. During the aforesaid period of six weeks, respondent no. 2 in consultation with respondent no. 3, shall forward a fresh list of advocates to respondent No. 1 for being considered for appointment as Govt. Pleader, Assistant Govt Pleader and Public Prosecutor.

Supreme Court of India made observations in the case of Johri Mal. States should give primacy to the opinion of the District Judge, says Supreme Court. The state should bear in mind the dicta of this Court in Mundrika Prasad Singh (supra), as regards the necessity to consult the Judge. Such a course of action would demonstrate fairness and reasonableness of action, says the court. The action of the State would not be dubbed as politically motivated or otherwise arbitrary, it adds. No rationale behind deletion of provision relating to consultation with the High Court in the matter of appointment of Public Prosecutors in High Court.

The writ petition stands allowed to the extent as indicated above, leaving the parties to bear their own cost.

Written by – Uthra Varadarajan

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