JUDGMENT Nagendra Prasad Singh, J. The petitioner in this writ application has questioned the legality of the appointment of respondent no. 3 as the Public Prosecutor of the district of Madhubani 2. According to the petitioner, he was enrolled as an Advocate by the Bihar State Bar Council on 11.3.1959 and since then he has been practising in the courts at Madhubani and Darbhanga. The Sessions Judge of Darbhanga (which Sessions Division included the district of Madhubani as well) on a request being made recommended on 19.1.1978 the name of the following persons in order of preference, including the petitioner . (1) Sri Brahmdeo Narain Choudhary. (2) Sri Mithilesh Pd. Singh. (3) Sri Surya Narain Raut. (4) Sri Krishna Singh. After receipt of the recommendation of the Sessions Judge, the District Magistrate, Madhubani prepared a panel of four names, substituting three new names including that of respondent no. 3. The petitioner, however, was common in the recommendations of the Sessions Judge as well as the District Magistrate. In the letter addressed to the State Government, the District Magistrate Stated as follows :- "The following names are recommended in order of preference for appointment as Public Prosecutor for Madhubani District. These names have been taken into consideration after getting the opinions of the District Judge and the Superintendent of Police, Madhubani. 1. Shri Hussain. Advocate, Madhubani. 2. Shri Yogeshwar Ghosh, Advocate, Madhubani. 3. Shri Mithilesh Pd. Singh, Advocate, Madhubani. 4. Shri Prabhu Lal Yadav, Advocate, Madhubani." A copy of that letter is Annexure-A to the counter affidavit filed on behalf of respondent nos. 1, 2, 4 and 5. The State Government, out of the panel of names forwarded by the District Magistrate, appointed Shri Yogeshwar Ghosh, Advocate (respondent no.3) as The Public Prosecutor of Madhubani. The order of the State Government was communicated to respondent no. 3 under letter dated 26.7.1978, a copy where of is Annexure 2 to the writ application. According to the petitioner the said appointment is against the provisions of the Code of Criminal Procedure, 1973 (here in after to be referred to as 'the Code'). 3. Section 24 of the Code provides the manner and procedure of the appointment of Public Prosecutor by the State Government for districts. According to the petitioner the said appointment is against the provisions of the Code of Criminal Procedure, 1973 (here in after to be referred to as 'the Code'). 3. Section 24 of the Code provides the manner and procedure of the appointment of Public Prosecutor by the State Government for districts. The relevant portion of that section 24 is as follows :- "(2) For every district the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Prosecutors for the district. (3) 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 the Public Prosecutor or Additional Public Prosecutor for the district. (4) No person shall be appointed by the Slate Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears on the panel of names prepared by the District Magistrate under sub-section (3). (5) A person shall only be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2), if he has been in practice as an advocate for not less than seven Sub-section (3) of section 24 requires the District Magistrate to prepare a panel of names of persons who are in his opinion fit to be appointed as a Public Prosecutor "in consultation with the Sessions Judge.” Sub section (4) places a bar on the power of the State Government to appoint a person as Public Prosecutor or an Additional Public Prosecutor for any district whose name does not appear on the panel of names prepared by the District Magistrate under sub-section (3). In the present cue the facts are not in dispute. The State Government asked the District Magistrate to send panel of names for appointment to the post of the Public Prosecutor, Madbubani the Sessions Judge Darbhanga, on request being made, recommended the names of four persons mentioned above, including the name of the petitioner. The District Magistrate, after receipt of the recommendation from the Sessions Judge, prepared a panel of four names, including the name of the petitioner. In the panel, three new names were substituted which did not find place in the recommendation of the Sessions Judge. It is also admitted that while substituting three names including that of respondent no. The District Magistrate, after receipt of the recommendation from the Sessions Judge, prepared a panel of four names, including the name of the petitioner. In the panel, three new names were substituted which did not find place in the recommendation of the Sessions Judge. It is also admitted that while substituting three names including that of respondent no. 3, The District Magistrate never consulted, with reference to those names, the Sessions Judge either verbally or through correspondence. Now the question which has fallen for determination is as to whether the procedure which was adopted by the District Magistrate for preparation of the panel of names, was in conformity with the requirement of sub-sections (3) and (4) of section 24 of the Code. The other issue which is to be decided is that if it is held to be not in conformity with the requirement of Sub-section (3) of section 24, whether the appointment of respondent no. 3 itself shall be Invalid. 4. Learned counsel appearing for the petitioner submitted that the expressions "in consultation with The Sessions Judge" means an effective consultation of in respect of each name and once It is found that the Sessions Judge at no stage was consulted in respect of respondent no. 3 then in the eye of law there has been no consultation, as required by sub section (3) of section 24 which will nullify the appointment of respondent no. 3 itself. The words "in consultation with" have different shade and meaning, in the context in which they have been used in different enactments as well as in some of the Articles of 'be Constitution. On some occasions it has been held that the said mandate should be observed not only in form but in spirit as well failing which the decision or action, as the case may be, itself is invalidated, whereas in connection with some enactments It has been held that It shall not Invalidate the actions taken because it is a breach of a direction and not of a mandate. Every time while ascertaining as to whether it is a direction or a mandate all surrounding circumstances have to be examined as to what was the public purpose of including such a provision in the concerned Act; what likely mischief is to happen if they are not strictly observed. ? 5. Every time while ascertaining as to whether it is a direction or a mandate all surrounding circumstances have to be examined as to what was the public purpose of including such a provision in the concerned Act; what likely mischief is to happen if they are not strictly observed. ? 5. In the case of State of U.P. V. Manbadhan Lal Srivastava a question had arisen as to whether the provision of Article 320 (3) or the Constitution. regarding consultation with the Union Public Service Commission or the Stare Public Service Commission on matters relating to methods and principles of recruitment to several services was directory or mandatory in nature so as to invalidate any action taken in absence of consultation or any irregularity in consultation. It was held that said provision was not mandatory and absence of consultation or any irregularity in consultation shall not afford any cause of action in a court of law. But it was pointed out that it did not amount to saying that it is open to the executive Government completely to ignore the existence of the commission or pick and choose cases in which it may or may not be consulted. The provision of that Article was meant to be followed in letter and spirit, because it had been included in the Constitution with a purpose to safeguard the interests of the members in service in general. The view that said provision was not mandatory was taken because of the proviso to Article 320 (3) which provides that the President of the Governor may make regulation specifying the matters in which either generally or in particular class of cases or in particular circumstances it should not be necessary for a Public Service Commission to be consulted. On the basis of this proviso, it was pointed out that this Article itself conceived that in certain situations Public Service Commission need not be consulted. 6. In the case of Chandra Mohan V. Stare of Uttar Pradesh and others. The Supreme Court had to consider a similar provision in Article 233 of the Constitution which provides that the appointments of persons to be, and the posting and promotion of, District Judge in the State shall be made by the Governor of the State “In consultation with the High Court. In that connection, it was observed :- "The constitutional mandate is clear. In that connection, it was observed :- "The constitutional mandate is clear. The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say, he can only appoint a person to the post of district judge in consultation with the High Court. The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the 'judicial service or to the Bar, to be appointed as a district judge. Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him. This mandate can be disobeyed by the Governor in two ways namely. (i) by not consulting the High Court at all and (ii) by consulting the High Court and also other persons. In one case he directly infringes the mandate of the Constitution and in the other be indirectly does so for his mind may be influenced by other persons not entitled to advise him.” It was further pointed out that the duty to consult the High Court was so integrated with the exercise of the power that the power can be exercised only in consultation. On that view it was held that tiny appointment without consultation with the High Court or on the basis of consultation with some other person was invalid. 7. It the case of Chandramouleshwar Prasad V. Patna High Court and others again scope of Article 283 and non-compliance there of came up for consideration. In that case it was observed :- "Consultation with the High Court under Art. 233 is not an empty formality. So far as promotion of officers to the cadre of District Judges is concerned the High Court is best fitted to ad-judge the claims and merits of person to be considered for promotion. The Governor cannot discharge his function under Art.233 if he makes an appointment of a person without ascertaining the High Court's views in regard thereto. It was strenuously contended on behalf of the State of Bihar that the materials before the Court amply demonstrate that there had been consultation with the High Court before the issue of the notification of October 17, 1968. It was strenuously contended on behalf of the State of Bihar that the materials before the Court amply demonstrate that there had been consultation with the High Court before the issue of the notification of October 17, 1968. It was said that the High Court had given the Government its views in the matter the Government was posted with all the facts and there was consultation sufficient for the purpose of Art. 233. We cannot accept this. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposal the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation ." 8. In the case of Union of India V. Sankalchand Himatlal Sheth and another a similar expression in Article 222 (1) of the Constitution had to be interpreted which provided that the President may "after consultation with the Chief Justice of India" transfer a Judge from one High Court to any other High Court. In that connection, it was observed by Chandrachud, J., (as he then was) :- “Article 222 (1) which requires the President to consult the Chief Justice of India is founded on the principle that in a matter which concerns the judiciary vitally, no decision ought to be taken by the executive without obtaining the views of the Chief Justice of India who, by training and experience, is in the best position to consider the situation fairly, competently and objectively. But there can be no purposeful consideration of a matter, In the absence of facts and circumstances on the basis of which alone the nature of the problem involved can be appreciated and the right decision taken. It must, Therefore, follow that while consulting the Chief Justice, the President must make the relevant data available to him on the basis of which he can offer to The President the benefit of his considered opinion. It must, Therefore, follow that while consulting the Chief Justice, the President must make the relevant data available to him on the basis of which he can offer to The President the benefit of his considered opinion. If the facts necessary to arrive at a proper conclusion are not made available to The Chief Justice, he must ask for them because, in casting on the President the obligation to consult the Chief Justice, the Constitution at the same time must be taken to have imposed a duty on the Chief Justice to express his opinion on nothing less than a full consideration of the matter on which he is entitled to be consulted." 9. In Words and Phrases (Permanent Edition, 1960, Volume 9 page 3) 'consult' word is defined as to discuss something together, to deliberate.' Stroud's Judicial Dictionary (Volume 1, Third Edition, 1952 page 596) quoting Rollo V. Minister of Town and Country Planning and Fletcher V. Minister of Town and Country Planning says in the context of expression "consultation with any local authorities." that "consultation means that, on the one side, the Minister must supply sufficient Information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender advice" thus, deliberation is the quintessence of consultation. In the case of Sri Ranjit Narain V. State of Bihar and others a Bench of this Court, while considering the scope of sub-sections (2) and (3) of section 7 of the Code, which enables the State Government to transfer certain areas from one Sessions Division to another "after consultation with the High Court" held that the consultation with the High Court is obligatory, the consultation must be an effective one and not an empty formality. 10. It was urged on behalf of the respondent State as well as respondent no. 3 that the consultation with the Sessions Judge need not be with reference to each name, what is required by said sub-section (3) is that the opinion of the Sessions Judge should be taken before preparation of the panel of names by the District Magistrate, there is no limitation on the power of the District Magistrate in including the names of persons which do not find place in the recommendation of the Sessions Judge. In my opinion, it is difficult to accept this contention. In my opinion, it is difficult to accept this contention. Sub-section (3) of section 24 enjoins on the District Magistrate to prepare the panel in consultation with the Sessions Judge. Sub-section (4) makes It amply clear that the State Government shall not appoint a person to be Public Prosecutor unless his name appears on the panel or names prepared by the District Magistrate under sub section (3). In my view, the framers of the Code having provided under sub-section (3) of section 24 that the panel of names shall be prepared in consultation of Sessions Judge took additional precaution by incorporating sub section (4) that a person whose name does not find place in the panel prepared in accordance with sub-section (3) should not be appointed as Public Prosecutor. To me it appeals that there was a purpose for this check. The Public Prosecutor under the Code has to perform many statutory functions apart from acting as a prosecutor during the trial and, as such. it was considered necessary to lay down a procedure for his appointment. It cannot be denied that the Sessions Judge is in a much better position to know about the merit of a person who is going to be appointed as a Public Prosecutor. The District Magistrate, specially after the separation of the judiciary from the executive, has hardly any occasion to know the respective merits of the persons who are fit to be appointed as Public Prosecutor. The District Magistrate, however, being the representative of the State has to express his opinion about the suitability of the person concerned. The Sessions Judge may know the lawyer, but not the man, whereas the District Magistrate may know better the man. If the names are recommended after proper consultation between the Sessions Judge and the District Magistrate, it is expected that persons having merit as well as integrity and character are appointed as Publics Prosecutors. In such a situation, It cannot be held that consultation with the Sessions Judge before preparation of the panel need not be an effective one. 11. If the names are recommended after proper consultation between the Sessions Judge and the District Magistrate, it is expected that persons having merit as well as integrity and character are appointed as Publics Prosecutors. In such a situation, It cannot be held that consultation with the Sessions Judge before preparation of the panel need not be an effective one. 11. Learned Government Advocate while distinguishing the aforesaid cases of the Supreme Court in respect of Article 233 of the Constitution urged that the Supreme Court expressed the view because of Article 235 of the Constitution which vests control over district courts in the High Court, so far as the Public Prosecutor is concerned, he is not under the control of the Sessions Judge or the High Court, for appointment of Public Prosecutor the final say should be of the District Magistrate. It is difficult to accept this contention. No doubt, it is upto the State Government to appoint any of the persons whose names find place in the panel, but the panel must be prepared by the District Magistrate in consultation with the Sessions Judge. I, however, hasten to add that this does not mean that the panel can be prepared only of names, over which the Sessions Judge and the District Magistrate are agreed, but there must be deliberations between the two on names included in the panel. If the District Magistrate wants to include any name in the panel which does not find place in the recommendation of the Sessions Judge he is enjoined under sub-section (3) of section 24 to consult the Sessions Judge in respect of that name and to forward the opinion of the Sessions Judge to the State Government. Then only it can be held that the requirement of sub-section (3) has been complied with in letter and spirit. In the instant case, admittedly, the name of respondent no.3 having not been referred to the Sessions Judge for his opinion, it has to be held that the name or respondent no. 3 could not have been Included In the panel of names prepared by the District Magistrate. Accordingly, I am left with no option, but to hold that the appointment of respondent no.3 as the Public Prosecutor, Madhubani is not in conformity with the requirement of section 24, and, as such, liable to be quashed. 13. 3 could not have been Included In the panel of names prepared by the District Magistrate. Accordingly, I am left with no option, but to hold that the appointment of respondent no.3 as the Public Prosecutor, Madhubani is not in conformity with the requirement of section 24, and, as such, liable to be quashed. 13. Accordingly, I allow this writ application and quash the appointment of respondent no. 3. In the circumstances of the case, however, there will be no order as to costs. Now it will be open to the respondent State, If they so like, to ask the District Magistrate to send a panel of names of persons In consultation with the Sessions Judge concerned for the appointment to the post of Public Prosecutor, Madhubani. I agree. Application allowed.