Aboobaker v. M. Ratna Singh — 1991 DIGILAW 513 (KER)

Judgment :- Petitioner seeks to quash the appointment of third respondent as Director General of Public Prosecutions. A writ of 'mandamus' to appoint another Special Prosecutor in the place of third respondent to conduct S.C.10/91 on the file of the Court of Session, Manjeri is also sought. By an amendment to the writ petition, a writ of quo warranto is sought to call upon third respondent to show his title to hold the office of the Director General of Public Prosecutions, D.G.P.P. for short. 2. Petitioner is the accused in S.C.10/91 on the file of the Court of Session, Manjeri Division. Petitioner stands trial for offences under Ss.302, 450 & 376 read with S.511 IPC, in that he is alleged to have trespassed into the house of deceased Sujatha, attempted to commit rape on her and caused her death during the course of the same transaction at or about 5 p.m. on 2-9-1985, The case was investigated by the State Police and later by the Central Bureau of Investigation, pursuant to the direction issued by this court in O.P.10677/87. Third respondent was appointed Special Prosecutor, to conduct the prosecution. While functioning as Special Prosecutor, third respondent was appointed Public Prosecutor in the High Court, by Ext.P2 order dated 16-10-1991. By Ext.P3 dated 25-10-1991, the Public Prosecutor was re-designated as Director General of Public Prosecutions. Petitioner has not produced the order appointing third respondent as Special Prosecutor, nor has he stated by whom the appointment was made. Presumably, the appointment was made by the Union of India, a respondent to the writ petition. At the instance of petitioner, Union of India was removed from the array of parties by orders on CMP 20510/91. To whom a direction is sought to remove third respondent and appoint another in his place, is not known. 3. Petitioner submits that third respondents is ineligible to hold the office of Public Prosecutor in the High Court, as he has crossed the age of sixty prescribed under rule 14 of the Government Law Officers (Appointment and Conditions of service) and Conduct of Cases Rules, 1978, called the 'Rules' hereinafter. Rule 14 was amended by Ext.P4, omitting the restriction regarding age in the case of the Public Prosecutor. The amendment is challenged on the ground that there was no consultation with fifth respondent, Public Service Commission. Rule 14 was amended by Ext.P4, omitting the restriction regarding age in the case of the Public Prosecutor. The amendment is challenged on the ground that there was no consultation with fifth respondent, Public Service Commission. According to petitioner, consultation is mandatory, by reason of Article 320 of the Constitution. Even, consultation with the High Court under S.24 of the Code of Criminal Procedure, is defective -- submits petitioner. Provisions of the Kerala Public Service Act, 1968, called 'the Act' hereinafter, also have been violated according to petitioner. He has yet another contention that a fair trial will be denied to him. The Special Prosecutor being the D.G.P.P. also, police witnesses will depose against him, apprehends petitioner. 4. Elaborating the contentions, counsel for petitioner submitted that third respondent is disqualified by reason of m's age. Rule 14 states that a person who has attained the age of sixty, will not be eligible for appointment as Public Prosecutor. Third respondent is past 60, Faced with the amendment to the rule - Ext.P4, counsel submitted that the amendment is bad, for absence of consultation with Public Service Commission. The argument that third respondent is ineligible for appointment by reason of age cannot be accepted because, age restriction in rule 14 has been removed by Ext.P4. The amendment was made on 15-10-1991 (Ext.P4) and the appointment was made only on 16-10-1991 (Exi.P2). Qualifications are prescribed by rule 5. Rule 14 is only in the nature of prohibition, though both rules are captioned "Qualifications". Meanings unintended cannot be imported, by reason of imprecise language. Counsel of Sir Fitz James Stephen may be recounted: "In drafting it is not enough to gain a degree of precision, which a person reading in good faith can understand, but it is necessary to attain, if possible, a degree of precision which z. person reading in bad faith, cannot misunderstand." That apart, rule 14 (unamended) comes into the picture only at the time of appointment The keyword in rule 14 is 'appointed' unlike 'included in the panel' in rule S. For inclusion in the panel, qualifications are prescribed under rule 5. Age is not mentioned in that rule, 'Age' occurs only in rule 14, and that is germane only at the time when a person is 'appointed'. Age is not mentioned in that rule, 'Age' occurs only in rule 14, and that is germane only at the time when a person is 'appointed'. Rule 14 (unamended) reads: "No person who has completed the age of sixty years shall be appointed as a Government Law Officer, other than a Special Government Pleader, Special Public Prosecutor or a Pleader to do Government work." Two other contentions advanced by petitioner, also can be considered in this context. It is submitted that amendment has not come into force as it has not been published. Advocate General referred to Gazette No.43, wherein publication is made. Close relationship between the Chief Minister and third respondent, is alleged. Close personal relationship with the Chief Minister, or the Chief Minister holding a fair opinion about third respondent will not vitiate the appointment. Petitioner has no case that third respondent was not competent to hold the office, or that he was appointed solely because of the interest of the Chief Minister, despite inadequacies. 5. The next question relates to consultation. Petitioner was not able to support his contention regarding need to consult the Public Service Commission, either on principle or on precedent. Consultation is visualised in matters relating to "methods of recruitment, principles to be followed in making recruitment etc." by Article 320(3) of the Constitution. The proviso to the same Article excludes certain posts from the pale of consultation. The Kerala Public Service Commission (Consultation) Regulations 1957, framed in exercise of the power conferred by the proviso to Article 320(3) of the Constitution, excludes enumerated posts. Consultation shall not be necessary in respect of these. "Posts of Law Officers (including Advocate General and Government Pleaders)" are enumerated in the Annexure (Entry 3). 6. It was then argued that consultation with the High Court was defective, and that the appointment is bad for that reason. Counsel for petitioner could not indicate specific matters, in respect of which consultation is required of contours of consultation. S.24 of the Code of Criminal Procedure does not state matters on which consultation is to be made. But, it can only be regarding suitability of a person to hold the office. Suitability of third respondent to hold the office of Public Prosecutor, merit wise, is not even challenged. S.24 of the Code of Criminal Procedure does not state matters on which consultation is to be made. But, it can only be regarding suitability of a person to hold the office. Suitability of third respondent to hold the office of Public Prosecutor, merit wise, is not even challenged. Age of a person, which assumes relevance only at the time of appointment (under the unamended rule ), is not a matter of concern to the High Court, which is consulted prior to appointment. The argument relating to defective consultation based on age, also must fail. 7. It was argued further that the appointment was not made from a panel submitted by the Advocate General. Rule 16 requires the Advocate General to send a panel of names to the Government, alid the size of the panel must be three times the number of vacancies. It is not the case of petitioner that the name of third respondent was not included in the panel. His grievance is that the range of panel was limited. Even if it is so, the appointment will not be vitiated. Every defect is not an invalidating vice. The idea of sending a panel, is to enable the Government to exercise choice. If the Government feels that a wider range of choice should be available; rule 16 itself enables it to call for more names. Range of panel is only a matter of concern to the Government, and not to anyone else. Petitioner was unable to indicate, how the size of the panel would interest on the validity of the appointment. 8. Counsel contended vaguely, that the appointment is under the Kerala Public Services Act, and that it is bad as it is not consistent with the prescriptions in the rules made under the Act. This argument vague as it is, is only an amalgam of arguments already noticed, based on rules 5,14 & 16. Counsel was unable to state specifically how the appointment is bad, or which provision of the Kerala Public Services Act is violated. That apart, argument that third respondent was appointed as Public Prosecutor under the Kerala Public Services Act, cannot be accepted. Office of the Public Prosecutor is created by the Code of Criminal Procedure, and appointment is made only under the Code. Plurality of source of authority to make an appointment, is alien to the context. That apart, argument that third respondent was appointed as Public Prosecutor under the Kerala Public Services Act, cannot be accepted. Office of the Public Prosecutor is created by the Code of Criminal Procedure, and appointment is made only under the Code. Plurality of source of authority to make an appointment, is alien to the context. It is useful to refer to S.24 of the Code. It reads: "S.24: Public Prosecutors: For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be: (2) (3) (5) (6) (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-s.(1) or sub-s.(2) or sub-s.(3) or sub-s.(6), only if he has been in practice as an Advocate for not less than seven years." As far as appointments under S.24(1) are concerned, the question of appointment to "a service" does not arise. There is no service, and there is only an office. 9. The Kerala Public Service Act is an Act "to regulate the recruitment and conditions of service of persons appointed to Public Services and posts in connection with the affairs of the State of Kerala". (emphasis supplied) It is not easy to think that the Public Prosecutor appointed under S.24(1) of the Code, is 'recruited' to 'public services or posts' In connection with the affairs of the State of Kerala. The Act, as noticed is designed to regulate 'recruitment and conditions of service* of persons appointed to Public Services. Indisputably, there is no recruitment under the Act, the appointment being under S.24(1) of the Code of Criminal Procedure. The appointment is not to a "service or post" in the real sense. Perhaps, the position may be different under S.24(5). But, it is unnecessary to consider the question further, as petitioner did not advance any argument on this aspect. 10. Petitioner seems to build his entire argument on the expression "in connection with the affairs of the State of Kerala". Perhaps, the position may be different under S.24(5). But, it is unnecessary to consider the question further, as petitioner did not advance any argument on this aspect. 10. Petitioner seems to build his entire argument on the expression "in connection with the affairs of the State of Kerala". Not all functionaries who discharge functions in connection with the affairs of the State of Kerala, are "appointed to a public service", nor are they "recruited", nor do they hold "posts". For example, the Governor of Kerala who is the Head of the State, is not "recruited", nor "appointed to public service", nor does he hold a "post". The Governor acts or discharges functions in connection with the affairs of the State of Kerala. For that reason, it cannot be said that he is "recruited" to a "public service" or "post". There are functionaries who hold office under the Constitution or under Statutes, outside 'public service'. The Advocate General who holds a Constitutional office is one such. Because the Annexure to the Kerala Public Service Commission (Consultation) Regulations 1957 (Entry 3) refers to the "Advocate General", it cannot be held that the office of the Advocate General is a "post" in public service". He too, discharges functions in connection with the affairs of the State of Kerala. It is the nature of appointment that matters, and not in what connection the appointee or office holder functions. Petitioner seems to take the tree for the woods, by reasoning back from the expression "in connection with the affairs of the State of Kerala". That expression is only an expression qualifying the "public service or post". It is only descriptive or qualifying. The decision in State of Assam v. Kanak Chandra (AIR 1967 SC 884) cited by counsel does not advance his argument. The Court stated that the expression "post" denotes an office. That is not to say that all offices, are posts for purposes of Article 309 or Article 310 of the Constitution. 11. Appointment of Public Prosecutor under the Criminal Procedure Code is not an appointment to a "post" in a "service". Therefore, the Kerala Public Services Actor the Rules framed thereunder can regulate, if at all, only "conditions of service". The contention urged by counsel for petitioner relating to invalidity of appointment cannot be accepted for any of the reasons stated by him. 12. Therefore, the Kerala Public Services Actor the Rules framed thereunder can regulate, if at all, only "conditions of service". The contention urged by counsel for petitioner relating to invalidity of appointment cannot be accepted for any of the reasons stated by him. 12. Petitioner is also aggrieved by the remuneration and "status" of the Advocate General granted to third respondent. He states that the "status" of the Advocate General cannot be conferred on any other functionary. The office of the Advocate General is an "office under the Constitution, and there is no office identical to it. But, I see no right in the petitioner to challenge the perquisites granted to third respondent. 13. Petitioner argues that right to fair trial is denied to him. He states so because, the Special prosecutor is also the D.G.P.P. and so he can order a command performance, wielding authority over police witnesses (paragraph 12 of the petition). This argument is laced with the submission that the Special Prosecutor has withheld charge witnesses 140 to 146 (paragraph 8 of the OP). It is said that the D.G.P.P. is biased, against petitioner (paragraphs 8 & 10). 14. According to petitioner, the Public Prosecutor must act fairly and he cannot act, as a private counsel might. Counsel relied on the decisions in Habeeb Mohammad v. State of Hyderabad (AIR 1954 SC 51), Rajkishorerabidas v. The State (AIR 1969 Calcutta 321), State v. Socorro Jesus Das(AIR 1970 Goa 7), Ram Prasad v. State of UP. (AIR 1973 SC 2673),v v. Cambome Justices (1954 (2) All England Reports 851) and R.v. Leyland Justices (1979 Q.B.D. 283), to support this contention. 15. In the early days, the Public Prosecutor was like any other counsel who would press for a verdict for his client. Over the years, the office was chiselled in to a public office. J.LI. J. Edwards in'Law Officers of the Crown', has traced the growth of the office of the Public Prosecutor in England. Prosecution of offences was left in the hands of private persons in that country, as noticed by Sir Fitz James Stephen in 'History of Criminal Law'. According to Sir The obald Mathew, there was no public prosecutor in England, in the true sense of the term. About the manner in which prosecutions were conducted, Lord Chief Justice Campbell observed: "The Criminal Law is most shamefully perverted to serve private purposes". According to Sir The obald Mathew, there was no public prosecutor in England, in the true sense of the term. About the manner in which prosecutions were conducted, Lord Chief Justice Campbell observed: "The Criminal Law is most shamefully perverted to serve private purposes". However, in Scotland prosecutions were under the supervision of the Lord Advocate. Ireland followed suit with its indigenous machinery of Crown Solicitors. The United States and many Common Wealth Countries adopted the principle that enforcement of criminal law is a federal or State function, thus eschewing the inquisitorial features in European system of criminal prosecutions. The winds of change swept the landscape. Change was heralded with the introduction of the Public Prosecution Bill in 1873. In 1879, a new approach was tried by Sir John Holkers, the Attorney General. A full-fledged office of the Solicitor of Public Prosecution emerged, and this later became the office of the Director of Public Prosecutions. Prosecution of Offenders Act, 1884 and the appointment of Sir august us Stephenson as Director of Public Prosecutions, mark the beginning of modern era. With the succession of Sir Hamilton Cuffe, "the most thankless office under the Crown" became an institution and the office of the Public Prosecutor became a public office in its true sense. The English pattern came to stay in India. Today, it is beyond doubt that Public Prosecutor represents public interest, and that he acts as the Minister of Justice of the Court, 16. Kenny's 'Outline of Criminal Law' gives a vivid picture of the office and its duties: "....A prosecuting counsel stands in a position quite different from that of an advocate who represents the person accused or represents a plaintiff or defendant in a civil litigation. For this latter advocate has a private duty- that of doing everything that he honourably can, to protect the interests of his client. He is entitled to 'fight for a verdict'. But the Crown counsel is a representative of the State 'a minister of justice'; his function is to assist the jury in arriving at the truth. For this latter advocate has a private duty- that of doing everything that he honourably can, to protect the interests of his client. He is entitled to 'fight for a verdict'. But the Crown counsel is a representative of the State 'a minister of justice'; his function is to assist the jury in arriving at the truth. He must not urge any argument that does not carry weight in his own mind, or try to shut out any legal evidence that would be important to the interests of the person accused but there is no rule or principle of practice that the prosecution must call witnesses irrespective of considerations of number and of reliability, or that the prosecution should discharge the functions of both prosecution and defence. It is regarded as proper, and enough, for the prosecution to acquaint the defence with any relevant information which has come into their hands so that the defence may have the opportunity to use it if they desire" 17. Judicial pronouncements dealing with the functions of the Public Prosecutor also may be noticed. In Seneviratne v. R.(1936(3) All England Reports 36), the Judicial Committee of Privy Council, outlined the functions and responsibilities of the Public Prosecutor. In that case, two of the fifty four prosecution witnesses were not called, and dealing with a contention similar to the one raised by petitioner, the Judicial Committee stated: "Their Lordships do not desire to lay down any rules to fetter discretion on a matter suet as this, which is so dependent on the particular circumstances of each case. Still less, do they desire t( discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence." (emphasis supplied) In Dallison v. Cattery (1965)1 Q.B.348 (CA)), Lord Denning M.R. dealing with a char g of withholding evidence, observed: "This contention seems to me to be based on the erroneous proposition that it is the duty of prosecutor to place before the court all the evidence known to him, whether or not it is probate of the guilt of the accused person. A prosecutor is under no such duty. A prosecutor is under no such duty. His duty is to prosecute in to defend. If he happens to have information from a credible witness which is inconsistent with the guilt of the accused, or helpful to the accused, the prosecutor should make such witness available the defence. But, it is not the prosecutor's duty to resolve a convict of evidence from apparent credible sources. The prosecutor's knowledge that there is such a convict, does not itself constitute lack of reasonable and probable cause for the prosecution, nor is it inconsistent with the prosecutor's honest belief that there is a case against the accused". (emphasis supplied) 18. The Supreme Court of India has clearly stated the duties of the Public Prosecutor. In Habeeb Mohammed v. State of Hyderabad (AIR 1954 SC 51), the duty to act fairly was stressed. Again in Shea Nandan Paswan v. State of Bihar (AIR 1987 SC 877), the Court reviewed its earlier decision and stated: "The court has a responsibility and stake in the administration of criminal justice and so has its Public Prosecutor, its Minister of Justice But unlike the judge, the Public Prosecutor is not an absolutely independent officer. He was an appointee of the Government, appointed for conducting in court any prosecution". The Prosecutor can use his discretion or professional judgment in the matter of examining witnesses. He can choose his witnesses. He is not under a duty to call every witness named in the charge. His duty is to act fairly, in the sense that he should not attempt to procure a conviction by unfair means. 'Unfair means' is that which law reckons not, and professional ethics and principles of natural justice interdict. As long as he exercises judgment honestly, so long he acts fairly. He does not have to plead for the defence. Because he does not summon certain witnesses, he cannot be accused of unfairness. In the case on hand, the accused had knowledge of the statements of witnesses, as the court directed the case diary statements of those witnesses who were not examined by the Prosecutor, to be furnished to the accused. That informs him of the material he is required to be informed of. It is up to him to cal! those witnesses in his defence, or to request the court to summon those witnesses as court witnesses. That informs him of the material he is required to be informed of. It is up to him to cal! those witnesses in his defence, or to request the court to summon those witnesses as court witnesses. Thus, the duty to act fairly was not violated by the failure to call charge witnesses 140 to 146. 19. Petitioner appears to have persuaded himself into the belief, that seeking a verdict of guilt, is unfairness. Concept of fairness in the manner advocated by counsel for petitioner, does not find any basis, in principle or precedent. Fairness required of a prosecutor is not qualitatively fairness required of a Judge. It cannot be, either. Duty of a Public Prosecutor is to bring the guilty to book. This is a public duty, not only in the Public Prosecutor, but also in the Judge. An observation from the Supreme Court is instructive. In State of U.P. v. Anil Singh (AIR 1988 SC 1998), the court observed: "A Judge does not preside over a criminal trial merely to see that no innocent is punished. He also presides to see that the guilty man does not escape. Both are public duties." The same view is reflected in Stirland v. D.P.P. (1944 A.C. 315). Viscount Simon stated: "A miscarriage of justice may arise from the acquittal of the guilty, no less than by conviction of an innocent. The court's function is to 'enforce the supreme and fundamental purpose of law to conserve not only the safety and order, but also the moral welfare of the State." It is the duty of the court to punish the guilty, and it is the duty of the Public Prosecutor to aid the court as its Minister of justice in this. Public Prosecutor is essentially the counsel of the State, though he is an Officer of the Court also. 20. It is the function of the judge and not of the Public Prosecutor, to ensure fairness in the trial. The decision in Mukund Lai v. Union of India (AIR 1989 SC 144) states so. The Supreme Court observed: "The Legislature has reposed complete trust in the Court which is conducting the inquiry or the trial. It has empowered the Court to call for any such relevant case diary. The decision in Mukund Lai v. Union of India (AIR 1989 SC 144) states so. The Supreme Court observed: "The Legislature has reposed complete trust in the Court which is conducting the inquiry or the trial. It has empowered the Court to call for any such relevant case diary. The public interest requirement from the stand point of the need to ensure a fair trial for an accused is more than sufficiently met by the power conferred on the Court, which is the ultimate custodian of the interest of justice and can always be trusted to be vigilant to ensure that the interest of accused persons standing the trial, is fully safeguarded. This is a factor which must be accorded its due weight. There would be no prejudice or failure of justice to the accused person since the Court can be trusted to look into the police diary for the purpose of protecting his interest. Therefore, the public interest requirement from the perspective of safeguarding the interest of all persons standing trial, is not compromised." 21. The next question relates to the consequence flowing from unfairness on the part of the Public Prosecutor. The answer is found in Ram Prasad v. State of U.P. (AIR 1973 SC 2673): "In case the court finds that the prosecution has not examined witnesses for reasons not tenable or not proper, the court would be justified in drawing an inference adverse to the prosecution." The consequence is that - and no more - it will not vitiate the trial. As observed in Mukund Lai's case (AIR 1989 SC 144), it is for the court to call for the case diary, and it has done that. 22. The next argument based on Article 21, is too transparent to stand scrutiny. Right to fair trial, may be a complement of the multi-faceted Article. But, everything that petitioner considers disadvantageous to him, cannot offend the Article. As observed in Ramsharan Autyanuprasi v. Union of India (AIR 1989 SC 549): "when one seeks relief for the breach of Article 21, one must confine oneself to some direct, overt and tangible act, which threatens the fullness of his life." Seemy grievances as petitioner has, are not such. The contention that the D.G.P.P. will use his authority over Police Officers, cannot be accepted. The contention that the D.G.P.P. will use his authority over Police Officers, cannot be accepted. It is not shown what his authority is, and it is not known why he should be biased against petitioner. This argument also has to be rejected. The question of issuing a writ of quo warranto does not arise, as the appointment has been properly made as noticed hereinbefore. Original Petition is without merit and is accordingly dismissed. No costs.