Vindhyavasni Prasad v. State Of Bihar — 1996 DIGILAW 491 (PAT)

Judgment Nagendra Rai, J. 1. The present writ application has been filed by the petitioner to quash the Government notification No.870 dated 9.3.19%, as contained in Annexure 1, by which respondent No.5 Shri Mohammad yunus, has been appointed as a Public prosecutor for the district of Purnea under Sec.24 of the Code of criminal Procedure (hereinafter referred to as the Code ). 2. One Sri Kusum Lal Sah was the public Prosecutor of the district. After his death, the Secretary, Law (Judicial)Department, Government of Bihar, patna, asked the District Magistrate, purnea, to send a panel of 11 Advocates, found fit and suitable for appointment as Public Prosecutor for the district of purnea, a copy of which was also sent to the District Judge, Purnea, vide memo no.2327 dated 19.7.1995, in pursuance of which the District Judge, Purnea, on 24.8.1995 sent a letter to the Secretary, law (Judicial) Department, Government of Bihar, Patna, recommending names of 11 persons, with a copy to the district Magistrate, Purnea. A copy of the said letter dated 24.8.1995 has been annexed as Annexure 2 to this writ application. The District Magistrate, thereafter, sent a list of 13 persons to the Secretary, Law (Judicial) Department, for appointment to the post of public Prosecutor. The two names i. e. at serial Nos.12 and 13, namely, Shri ashish Kumar Dey and Shri Md. Yunus (respondent No.5) were not in the list sent by the District Judge. While recommending their names, the District magistrate stated in the letter that he has reconsulted the matter with the District Judge and, thereafter, he has sent the names of thirteen persons mentioned in the letter. 3. According to the petitioner, he is also a practising Advocate and his name finds place at serial No.2 of both the lists sent by the District Judge and the District Magistrate and that the appointment of respondent No.5 as a public Prosecutor is in complete breach of the provision of Sec.24, sub-sections (4) and (5) of the Code. 4. A counter-affidavit has been filed on behalf of the State as well as on behalf of the District Magistrate, Purnea. 4. A counter-affidavit has been filed on behalf of the State as well as on behalf of the District Magistrate, Purnea. The stand of the State is that the names of thirteen persons were sent by the District Magistrate, vide Annexure 3, after due consultation with the District and Sessions Judge and the name of respondent No.5 found place in the said list at serial No.13 and the Government having considered the matter, has appointed respondent No.5 as a Public prosecutor and, thus, there is a complete compliance of the provision of section 24, sub-sections (4) and (5) of the Code. 5. A counter-affidavit has also been filed on behalf of the District Judge, purnea (respondent No.3), wherein it is stated that the District Magistrate, vide his letter dated 3.8.1995, requested the district Judge to send eleven names of advocates, along with their biodatas, considered fit for the post of Public prosecutor, Purnea, a copy of which has been annexed as Annexure b to the counter-affidavit. The District Judge, vide his letter dated 24.8.1995, sent a list of eleven Advocates, whom he considered fit for the post of Public prosecutor to the Secretary, Law (Judicial) Department, Government of bihar, Patna, with copy to the District magistrate, Purnea, a copy of which has been annexed as Annexure c to the counter-affidavit. It is also stated that on 9.11.1995, he received a copy of the letter sent by the District Magistrate, purnea, to the Secretary, Law (Judicial)Department, wherein he found that thirteen names of the Advocates were mentioned. The two names i. e. the names of Shri Ashish Kumar Dey and shri Md. Yunus (respondent No.5), who were at serial Nos.12 and 13, respectively, in the list of the District magistrate, were not in the list sent by him. The District Magistrate, Purnea, enquired from him regarding the inclusion of the name of Shri Ashish kumar Dey, mentioned at serial No.12 of the list (Annexure d) and the District Judge stated that he had no objection so far as the inclusion of name of shri Dey was concerned. There is no averment in the counter-affidavit that the District Magistrate consulted the district Judge with regard to the name of Md. Yunus (respondent No.5 ). No counter-affidavit has been filed on behalf of respondent No.5, though the counsel appeared and justified the appointment of respondent No.5 as a public Prosecutor. 6. There is no averment in the counter-affidavit that the District Magistrate consulted the district Judge with regard to the name of Md. Yunus (respondent No.5 ). No counter-affidavit has been filed on behalf of respondent No.5, though the counsel appeared and justified the appointment of respondent No.5 as a public Prosecutor. 6. The appointment of the Public prosecutor is made under Sec.24 of the Code and sub-section (4) thereof provides that the District Magistrate shall, in consultation with the Sessions judge, prepare a panel of names of persons, who, in his opinion, are fit to be appointed as Public Prosecutor or Additional Public prosecutor for the districts. Sub-section (5) thereof provides that no person shall be appointed by the state Government as the Public prosecutor unless his name appears in the panel of Advocates prepared under sub-section (4 ). The aforesaid two provisions show that a list has to be prepared by the District Magistrate of the persons to be appointed as a Public prosecutor in consultation with the District Judge and the appointment has to be made from that list alone by the state Government. To put it otherwise, unless the list is prepared by the District magistrate in consultation with the Sessions Judge, no appointment can be made to the post of Public Prosecutor and Additional Public Prosecutor by the state Government in any district. 7. The District Magistrate in his letter, contained in Annexure 3, has stated that after the District Judge recommended the names of 11 persons including the name of the petitioner, there was a reconsultation with him and two names were added, i. e. the names of shri Ashish Kumar Dey and respondent no.5. The District Judge in his counter-affidavit specifically says that apart from the list of 11 persons sent by him, he was consulted only with regard to Shri ashish Kumar Dey. In other words, there was no consultation in regard to the name of respondent No.5. There is no reason to disbelieve the assertion made on behalf of the District Judge in the counter-affidavit. In view of the said assertion made on behalf of the District judge, the assertion made by the District Magistrate in his counter-affidavit that there was a reconsultation with the district Judge regarding the recommendation of the names of Shri Ashish kumar Dey and respondent No.5, on the face of it, appears to be an incorrect statement. In view of the said assertion made on behalf of the District judge, the assertion made by the District Magistrate in his counter-affidavit that there was a reconsultation with the district Judge regarding the recommendation of the names of Shri Ashish kumar Dey and respondent No.5, on the face of it, appears to be an incorrect statement. The materials on the record clearly show that there was no consultation by the District Magistrate with the district Judge regarding the name of mohammad Yunus, respondent No.5. 8. Sub-section (4) of Sec.24 of the Code requires that the panel has to be prepared by the District Magistrate in consultation with the Sessions Judge. 9. The meaning of the word consultation in the Webster Universal dictionary is as follows: "consultation: 1. The act of consulting.2. Deliberation; a meeting of two or more persons to deliberate on a matter, a conference, e. g. of doctors upon a puzzling case. " 10. The meaning of the word consultation in the Randon House dictionary is as follows: "consultation: 1. The act of consulting, conference, 2. a meeting for deliberations, discussion or decision, 3. Eng. Law, a writ returning a case to an ecclesiastical court from a temporal one. " 11. In Shorter Oxford English Dictionary, the meaning of the expression consultation is given as follows:- "consultation: 1. The action of consulting or taking Counsel together, deliberation, conference, 2. a conference in which the parties, e. g. lawyers or medical practitioners consult and deliberate, 3. The action of consulting. . . . " 12. Strouds Law Lexicon gives the following definition of word "consultation": "consultation: (New Towns Act, 196 (9 and 1) Geo.6, c.68), S.1 (1), consultation with any local authorities, consultation means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to render advice, and on the other hand, a sufficient opportunity must be given to the local authority to tender advice" per Blucknil, L. J. in Roll v. Minister of Town and Country Planning, (1948) 1 All ER 18 (CA); see also fletcher V/s. Minister of Town and Country planning, (1947) 2 All ER 496. " 13. " 13. Word and Phrases-Permanent edition gives the meaning of consult thus: "consult means to seek opinion or advice of another, to take Counsel to deliberate together; to confer, to deliberate on; to discuss; to take Counsel to bring about; devise; contrive; to ask advice of; to seek the information of; to apply to for information or instruction; to refer to. Teplisky V/s. City of New York 133 NYS 2d 260, 261. " 14. In Law Lexicon by P. Ramanatha Aiyar, it is stated as follows: "consultations always require two persons at least; deliberations may be carried on either with a mans self or with numbers, an individuals may consult with one or many, assemblies commonly deliberate, advice and information are given and received in consultations; doubts, difficulties, and objections are stated and removed in deliberations. Those who have to co-operate must frequently consult together, those who have serious measures to decide upon must coolly deliberate. " 15. Thus, the meaning of the word consultation is deliberation, conference or discussion between the two or more persons. 16. The Supreme Court had occasion to consider the meaning of the word consultation in the case of chandra Mohan V/s. State of U. P. (A. I. R.1966 Supreme Court 1987 ). In that case, the question for consideration was the meaning of the word consultation occurring in Article 233, which provides that appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the governor of the State in consultation with the High Court. The Apex Court in the context, in which the word consultation occurred in Article 233, held that 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. 17. Again the word consultation came for consideration before a Five judges Bench of the Supreme Court in the case of Chandramouleshwar V/s. Patna high Court (A. I. R.1970 Supreme Court 370), in which the apex Court held as follows: "consultation with the High Court under Article 233 is not an empty formality. 17. Again the word consultation came for consideration before a Five judges Bench of the Supreme Court in the case of Chandramouleshwar V/s. Patna high Court (A. I. R.1970 Supreme Court 370), in which the apex Court held as follows: "consultation with the High Court under Article 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 adjudge the claims and merits of persons to be considered for promotion. The Governor cannot discharge his function under Article 233 if he makes an appointment of a person without ascertaining the High Courts 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 said that the High Court had given the Government its view in the matter; the government was posted with all the facts and there was consultation sufficient for the purpose of Article 233. We cannot accept this. Constitution 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 proposed the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation. 18. Again in the case of Union of india V/s. Sankalchand Himatlal Sheth (A. I. R.1977 SC 2328), while interpreting the word consultation occurring in article 222 (1) of the Constitution, the supreme Court held that the consultation is mandatory and transfer of a judge front one High Court to other high Court without consultation of the chief Justice of India is unconstitutional, it was also held that consultation within the meaning of Article 222 (1)means full and effective, not formal or unproductive, consultation. Deliberation is the quintessence of consultation. That implies that each individual case must be considered separately on the basis of its own facts. 19. Recently, the Constitutional bench of the Supreme Court in the case of Supreme Court. Deliberation is the quintessence of consultation. That implies that each individual case must be considered separately on the basis of its own facts. 19. Recently, the Constitutional bench of the Supreme Court in the case of Supreme Court. Advocates-on-Record association V/s. Union of India (A. I. R.1994 SC 268) considered the meaning of the word consultation occurring in Articles 124 (2) and 217 of the Constitution of India and it was held that the consultation occurring in the aforesaid articles is mandatory and violation of the same would be contrary to the constitutional mandate. While interpreting the aforesaid provision, it was further held that the opinion of the Chief Justice of India has primacy in the matter of appointment of the High Court and the Supreme Court Judges. 20. The words take different meaning and colour in different context, and as such the word has to be examined in its context. In Chapter 4 of the Treaties titled, "the Loom of Language", it is stated: "words are not passive agents meaning the same thing and carrying the same value at all times and in all contests. They do not come in standard shapes and sizes like coins from the mint, nor da they go forth with a degree to all the world that they shall mean only so much, no more and no less. Through its own particular personality each word has a penumbra of meaning which no draftsman can entirely cut away. It refuses to be used as mathematical symbol. " 21. In Town V/s. Eisner, [ (1917) 245 us 418], Mr. Justice Holmes said that "a word is not a crystal, transparent and unchanged; it is the skein of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used. " 22. Though the Supreme Court was. considering the constitutional provisions, the meaning given to the word consultation in the aforesaid cases by the Apex Court is of relevance to determine the point in controversy. The word consultation means deliberation, or discussion or meeting between two or more persons to deliberate on certain point and there should be exchange of views with regard to the matter of consultation between themselves. The consultation should be meaningful and productive and should not be unproductive or an empty formality. The word consultation means deliberation, or discussion or meeting between two or more persons to deliberate on certain point and there should be exchange of views with regard to the matter of consultation between themselves. The consultation should be meaningful and productive and should not be unproductive or an empty formality. Reading of sub-section (4) of Sec.24 of the Code clearly shows that the appointment of Public Prosecutor or Additional public Prosecutor has to be made by the state Government from the panel prepared under sub-section (4) of Sec.24 and the panel has to be prepared by the District Magistrate in consultation with the Sessions Judge. The government represents public interests and whoever is in charge of running their affairs, is no more than a trustee or a custodian of the public interests and the protection of the public interests to the maximum extent and in the best possible manner is his primary duty. It casts a duty to appoint most competent persons to appear on behalf of the state. In selection of lawyers, the government is duty-bound to appoint the best amongst available Advocates of particular time. The Public Prosecutor or Additional Public Prosecutor is appointed to represent the State in criminal cases before the Sessions Court and other Criminal Courts. The Sessions Judge is the best person to know about the legal acumen, quality of the counsels work, his capacity as an Advocate, his professional conduct, etc. To serve the public interest, this provision of consultation has been inserted so that the best amongst available Advocates at the particular time is selected to the office of the Public Prosecutor. The word consultation occurring in subsection (4) of Sec.24 of the Code means an effective and meaningful consultation and not a superficial and unproductive consultation. The District magistrate and the District Judge should get their respective views known to each other and discuss and examine the relative merit of each candidate and only then it can be said that there is an effective consultation between the District Magistrate and the District Judge. The District magistrate and the District Judge should get their respective views known to each other and discuss and examine the relative merit of each candidate and only then it can be said that there is an effective consultation between the District Magistrate and the District Judge. The requirement of consultation under section 24 (4) of the Code is mandatory as is evident from reading of the provisions of Sec.24 (4) and (5) of the Code itself and a Division Bench of | this Court has considered the aforesaid provision in the case of Shri Mithilesh prasad V/s. State of Bihar, 1979 Vol.7 b. B. C. J.657, in which it was held that if a panel is prepared by the District magistrate without consultation of the district Judge, then such panel is not valid in law and a person with regard to whose name there is no consultation by the District Magistrate with the District judge, he cannot be appointed as a public Prosecutor. 23. I am in full agreement with the law laid down by the Division Bench in the case of Shri Mithilesh Prasad Singh (supra) that if the panel is not prepared in accordance with sub-section (4) of section 24 of the Code, which requires the preparation of the panel by the District Magistrate in consultation with the district Judge, then such panel is not a valid panel and no appointment can be made on the basis of such panel. It is clarified that there should be consultation with regard to each and every name and if there is no consultation with regard to any name recommended by the District Magistrate, then such person cannot be appointed even though there is consultation by the District Magistrate with the District Judge with regard to other persons. In other words, there, should be consultation with regard to each and every person whose name is recommended by the district Magistrate. However, as the district Judge is the best person to know about the ability of a particular advocate, the view given by the District judge should be given due weight while making appointment of Public prosecutor. The recommendation made by the District Magistrate after consultation with the District Judge should also contain the opinion of the District magistrate and the District Judge with regard to each Advocate. The recommendation made by the District Magistrate after consultation with the District Judge should also contain the opinion of the District magistrate and the District Judge with regard to each Advocate. The District judge should give his opinion about each Advocate regarding the quality of the Counsels work from the judicial stand point, legal acumen of the Advocate, character, integrity, his professional conduct, performance in Court etc. and the District Magistrate should give his opinion about such Advocates from the administrative point of view. Such recommendation will help the government in selecting the best amongst the recommended names. The names should be recommended in order of preference. 24. It is to be made clear that rule of law pervades every action of the State government and non-arbitrariness in the essence of the rule of law and as such while appointing a Public prosecutor, the State Government cannot act arbitrarily. It should give due weight to the view of the District Judge while selecting a Public Prosecutor. The government should also indicate briefly the reasons for not selecting and bypassing the candidates, whose names are placed above in the panel. Though such reasons are not required to be stated in the order of appointment, but such reasons should be stated in the file so that in case any appointment is challenged on the ground of arbitrariness, the Court could know the reasons for appointing a particular Advocate as public Prosecutor. 25. In the present case, as held above, there was no consultation, much less effective consultation, between the district Magistrate and the District judge regarding the name of respondent no.5 and as such the mandatory provisions contained in sub-section (4)of Sec.24 of the Code has been violated and, thus, the appointment of respondent No.5 is invalid in the eye of law. Accordingly, the appointment of respondent No.5 as a Public Prosecutor is quashed and the State Government is directed to make fresh appointment of public Prosecutor in accordance with law. Till the regular appointment of public Prosecutor is made, the, senior-most additional Public Prosecutor will act as a Public Prosecutor. In the result, this application is allowed. Application Allowed.