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1994 DIGILAW 100 (PAT)

Mohan Jee Upadhyay v. State of Bihar

1994-03-08

N.PANDEY, S.K.CHATTOPADHYAYA

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Order In this application under Article 226 and 227 of the Constitution of India, the petitioner had initially prayed for quashing an order of the' Minister, Department of Law, dated 12.3.1993, whereby and where under, at the request of one Abdul Bari Siddiki, Member of Bihar Legislative Assembly, it was directed that Sri Ganpat Mandal (respondent no. 7) be made In-charge Public Prosecutor in place of Janardan Tiwary (respondent no. 6). The further prayer was for a direction to respondent nos. 2 to 5 to appoint a Public Prosecutor strictly in terms of the provisions of Section 24 of the Code of Criminal Procedure (hereinafter to be referred as ' the Code'). 2. During pendency of this writ application, a supplementary petition for necessary amendment in the writ application, was filed, praying therein, for quashing the recommendation for appointment of the Public Prosecutor, sent by the District Magistrate through his letter no. 307 dated 13.5.1993, a copy of which is Annexure-5. In view of the changed circumstances, learned counsel appearing on behalf of the petitioner confined his prayer for quashing of the recommendation and make appointment in accordance 'with law. 3. We have heard learned Advocate, appearing on behalf of the petitioner, learned Advocate General, appearing on behalf of the State, as also Mr. Ripu Daman Singh, learned counsel appearing' on behalf of respondent no. 6. Therefore, with their consent, this writ application is being disposed of at' the stage' of admission itself.' 4. It is stated that from a bare reference to the 'recommendation of the District Magistrate (Annexure-5) it would be 'evident that the name of Sri Muni Lal Yadav (respondent no.8) was included in the list of recommendation on extraneous consideration. It would appear that the State Government imposed its preference, in favour of respondent no. 8 upon the statutory authorities, in order to recommend his name for appointment to the Post of Public Prosecutor. It can not be said that such recommendation was free from influence and pressure of the State Government. Rather it is clear that the District Magistrate abdicted his independent assessment and was forced to include the name of respondent no. 8 in order to oblige the State Government. It can not be said that such recommendation was free from influence and pressure of the State Government. Rather it is clear that the District Magistrate abdicted his independent assessment and was forced to include the name of respondent no. 8 in order to oblige the State Government. In support of such contention, reference was made to the letter of the State Government dated 2.2.1993 (Annexure-3), directing the 'District Magistrate, Buxar, to send the name of respondent no.8 and his biodata along with others. 5. Besides the aforesaid, it is contended that earlier Sri Gopal Prasad Baishya,' General Secretary (Janta Dal), District - Buxar, had sent, a letter to the Chief Minister, stating therein, that the panel of the Public 'Prosecutor be cancelled because the names of Advocates,' belonging to Janta Dal, were not included in that panel. The Chief Minister asked the District Magistrate for appropriate action. A copy of such letter is Annexure-1 to the supplementary petition. 6. It is therefore, contended that the District Magistrate, having no other alternative, got the name of Muni Lal Yadav included in the list (Annexure- 5), which was recommended before the State Govt., Department of Law. 7. From a bare reference to the letter, whereby the names were recommended, it would appear that 'the name of Muni Lal Yadav was not included in the list at the sweet will' of the District Magistrate. The District Magistrate has himself mentioned that the name of Muni Lal Yadav was included in consultation with the District Judge simply because by a letter dt. 2.2.1993, he was directed to include the name of Sri Yadav. 8. Counter affidavits have been filed on behalf of the State Government as well as respondent no. 8. Learned Advocate General, appearing on behalf of the State, contended that the name of respondent no. 8 was included in consultation with the District Judge. If Sri Yadav was not a fit candidate, the District Judge should not have recommended his name. 9. Mr. Ripu Daman Singh, learned counsel appearing on behalf of respondent no. 8 contended that the writ application itself has been filed on account of malice and in order 10 favour respondent no. 6. It is contended that the petitioner, not being a candidate of Public Prosecutor, the writ, application at his instance is not maintainable. 9. Mr. Ripu Daman Singh, learned counsel appearing on behalf of respondent no. 8 contended that the writ application itself has been filed on account of malice and in order 10 favour respondent no. 6. It is contended that the petitioner, not being a candidate of Public Prosecutor, the writ, application at his instance is not maintainable. He further contended that there is nothing on the record to show that the letter of the State Government, asking the District Magistrate to send the name of Mr. Yadav, was at his instance. If such letter was sent by the State Government, respondent no. 8 cannot be victimised for such action. It was urged since the name of respondent no. 8 was sent by the District Magistrate in consultation with the sessions Judge, it can not be said that there has been violation of any of the provisions of section 24 of the code. 10. There is no doubt that the District Magistrate in his letter, contained in Annexurc-5, has mentioned that with respect to the name of Mr. Yadav (respondent no. 8) the Sessions Judge was also consulted. Sub-section (4) of section 24 of the Code prescribes, that a District Magistrate in consultation with a District Judge shall prepare a panel of the names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors. But it is well known that such-opinion which is mandatory in nature, must be free from bias and influence. From the letter of the District Magistrate, it is apparent that normally the 'mime of Sri Yadav would' not have been recommended but at the "direction of the State Government, it was so done. If the letter of the District Magistrate and direction of the State Government are read together, it would be manifest that the name of Sri Yadav was included in the list at the direction of the State Government. It is well known, that the rule of law envisages that justice must not merely be done but it must also be seen to be done. The action of the, State Government must be impartial. 11. We arc conscious about the fact that no final decision has yet been taken by the State Government on the basis of the recommendation, made by the District Magistrate. Therefore, no prejudice as yet has been caused to any person. The action of the, State Government must be impartial. 11. We arc conscious about the fact that no final decision has yet been taken by the State Government on the basis of the recommendation, made by the District Magistrate. Therefore, no prejudice as yet has been caused to any person. But, as indicated above, we can not ignore that, inclusion of the name of Sri Yadav in the list is at the direction of the State Government. Sub-section (4) of Section 24 of the Code gives exclusive jurisdiction to the District Magistrate and Session Judge to recommend names. We have already indicated, the word 'opinion' mentioned in Subsection (4) of Section 24 of the Code must be free from any pressure, or influence. Such recommendation on the basis of opinion of the authorities must be considered as statutory in nature. Therefore; no deviation to such mandatory provision can be permitted. 12. For the reasons, stated above, we have no option but to hold that the inclusion of the name of respondent no. 8 in the said list, contained in Annexure-5, is at the behest of State Government and cannot be termed as a recommendation under Sub-section (4) of Section 24 of the Code. 13. In the, result, the writ application is allowed to the extent, indicated above, and the respondents arc restrained from considering the name of respondent no. 8 on the basis of recommendation, as contained in Annexure-5.