Research › Search › Judgment

Allahabad High Court · body

2003 DIGILAW 1659 (ALL)

Vishal Yadav v. State of U. P.

2003-07-25

R.K.DASH, UMESHWAR PANDEY

body2003
UMESHWAR PANDEY, J. ( 1 ) THE petitioner an accused of murder case crime no. 192 of 2002, Police station Kavi Nagar district Ghaziabad, under Article 226 of the Constitution of india, has challenged the appointment of respondent no. 4 as Special Public prosecutor, under Section 24 (8) of the code of Criminal Procedure (for short the code) to conduct the Trial of the aforesaid case before the Additional sessions Judge, Patiyala House Courts, new Delhi. ( 2 ) IT is stated that by an order, the apex Court on the petition of the complainant of the case directed transfer of the Sessions Trial from the Court of sessions Judge, Ghaziabad to the Court of additional Sessions Judge, Patiyala house Courts, New Delhi. The respondent no. 1, while had assigned the job of prosecuting the trial earlier to one public Prosecutor at Ghaziabad, it later on appointed the respondent no. 4 as Special public Prosecutor to conduct and prosecute the case when it was transferred from Ghaziabad to the Courts at New delhi. The petitioner has taken several grounds for challenging the appointment of respondent no. 4 as Special Public prosecutor and stated that the respondent no. 4 wrote a letter to the Secretary, Chief minister for soliciting his appointment; that the appointment of respondent no. 4 is not in accordance with the provisions of sub Section (8) of Section 24 of the Code as he lacked qualifications of the practice at Bar as an Advocate for a period of ten years and that his appointment was in contravention to the rules and regulations contained in Chapter VII of the U. P. Legal Remembrancer Manual. Para-7. 08 of Chapter VII of the aforesaid Manual provides that no one would be eligible for appointment as State counsel after attaining the age of 62 years and the date of birth of respondent no. 4 being 23. 11. 1936 had already attained the aforesaid maximum age of 62 years long before his present appointment under challenge. It is though provided under sub section (9) of Section 24 of the Code yet no serving officer would be deemed to be in practice as an Advocate. It would be violative to the Advocates Act as well as article 14 of the Constitution of India. Therefore, the enabling sub Section (9) as aforesaid could not be attracted in the case of present appointment of respondent no. It would be violative to the Advocates Act as well as article 14 of the Constitution of India. Therefore, the enabling sub Section (9) as aforesaid could not be attracted in the case of present appointment of respondent no. 4. The respondent no. 4 had been in full time employment of the Central Bureau for Investigation as Legal Advisor/public prosecutor and he could not be deemed to be a practicing Advocate within the meaning of sub Section (8) of Section 24 of the Code. The petitioner has thus, contended that the aforesaid appointment of respondent no. 4 as Special Public prosecutor to conduct the case against the petitioner on behalf of the State of U. P. is wholly arbitrary and has been made on extraneous consideration. It being illegal and against the provisions of Section 24 (8) of the Code, should be quashed and a mandamus commanding the respondents should be issued by the Court that respondent no. 4 be not treated as Special public Prosecutor to appear and conduct the aforesaid criminal case before the additional Sessions Judge, Sri S. N. Dhingra at Patiyala House Courts, New delhi. ( 3 ) LEARNED counsel for the petitioner while arguing the matter before us, has in the first place challenged the appointment of respondent no. 4 as Special Public prosecutor in the said murder case on the ground that he does not possess requisite qualifications for such appointment under sub Section (8) of Section 24 of the Code. He is not an Advocate having experience of ten years practice as his enrolment as such with the Bar Council, Delhi was done only in the year 1994 when he laid his office of legal advisor with C. B. I, on his retirement. Learned counsel has also emphasized that the period during which the respondent no. 4 worked as Legal advisor/public Prosecutor in the C. B. I, could not be counted even with the help of deeming clause of sub Section (9) to be a period spent in practice as an Advocate. The enabling clause of sub Section (9) of section 24 of the Code would not legally be available in the matter of respondent no. 4. The enabling clause of sub Section (9) of section 24 of the Code would not legally be available in the matter of respondent no. 4. ( 4 ) ON the other hand, learned counsel for the respondents while replying to the submissions made on behalf of the petitioner in the aforesaid context has tried to make the provision of sub Section (9) of Section 24 of the Code threadbare and has stressed that this enabling clause does not go to alter the meaning/definition of word advocate as has been projected in the Advocates Act. Learned counsel for the petitioner has further emphasized that this sub Section (9) of Section 24 of the Code is also not violative to Article 14 of the Constitution of India. ( 5 ) SUB Sections (8) and (9) of section 24 of the Code are the relevant provisions for the purposes of appointing a person as Special Public Prosecutor by the Central Government or the State government as the case may be. The provisions of the aforesaid two sub sections (8) and (9) of Section 24 of the code are reproduced below :- " (8 ). The Central government or the state government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a special Public Prosecutor. (9) For the purposes of sub Section (7) and sub Section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a public Prosecutor or as an Additional public Prosecutor or other Prosecuting officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate. " ( 6 ) THE provisions of sub Section (9)aforesaid were not available in the Code prior to the Cr. P. C. (Amendment) Act, 1978 (Act No. 45 of 1978), which became applicable with effect from 18. 12. 1978. In the pre-amendment period sub Section (6)of Section 24 of the Code dealt with such appointment of a Special Public prosecutor. " ( 6 ) THE provisions of sub Section (9)aforesaid were not available in the Code prior to the Cr. P. C. (Amendment) Act, 1978 (Act No. 45 of 1978), which became applicable with effect from 18. 12. 1978. In the pre-amendment period sub Section (6)of Section 24 of the Code dealt with such appointment of a Special Public prosecutor. The said sub Section (6) of the Code was as below :- " (6) The Central Government or the state Government may appointment, for the purposes of any case or class of cases, an Advocate who has been in practice for not less than ten years, as a special Public Prosecutor. " ( 7 ) FROM the above, we find that prior to 1978 amendment the Central government or the State Government, for the purposes of any case or class of cases, could appoint a person as Special Public prosecutor only if he has been in practice for not less than ten years as an Advocate. Such appointment of a person having rendered service as a Public Prosecutor or as an Additional Public Prosecutor or as an Assistant Public Prosecutor or other prosecuting officers etc. was not possible. By virtue of 1978 amendment this enabling clause of sub Section (9) was added and the experience of the persons having been in service as Public prosecutor etc. was deemed to be an experience of practice as an Advocate. This sub Section however, does not appear to have come in conflict with the provisions of the Advocates Act. It is only with a view of taking benefit of the experience of a person serving as Public prosecutor etc. for a long drawn period of time, this amendment was introduced and the appointment of such person as Special public Prosecutor has been facilitated. It is not to the effect to altogether change the definition of Advocate as appearing in the Advocates Act. for a long drawn period of time, this amendment was introduced and the appointment of such person as Special public Prosecutor has been facilitated. It is not to the effect to altogether change the definition of Advocate as appearing in the Advocates Act. The Public Prosecutor or Legal Advisor working on full time basis with any department or corporation of the Government does have special experience in the prosecution branch and if by virtue of adding sub Section (9)aforesaid to the Code, the benefit of such experience was sought to be taken by the legislature for prosecuting a special case or group of cases by such persons, the said amendment or addition in the Code could not be taken to have come in conflict either with the provisions of the advocates Act or with Article 14 of the constitution of India. This deeming clause of sub Section (9) of Section 24 of the Code also does not confer a serving public Prosecutor/legal Advisor etc. a liberty to practice in Courts as an advocate. The meaning given to the functions of a Public Prosecutor in sub section (9) as an Advocate, is confined only for the purposes of appointment of such person as Special Public Prosecutor under sub Section (8) of Section 24 of the code. It has absolutely no other significance as to occasion a conflict between this sub Section (9) and the provisions of the Advocates Act or Article 14 of the Constitution of India. ( 8 ) BEFORE 1978 amendment, the emphasis under sub Section (6) of Section 24 of the Code was on the candidate being an Advocate in practice and not in practice as a Government servant. The underlying object in enacting the provisions of sub Section (6) was that only an Advocate of ten years standing and experience at the Bar should be chosen for appointment as a Special public Prosecutor. It could not then be attributed to the legislature that, when it implied the language an Advocate who has been in practice for not less than ten years, it intended that even a full time employee of the Government governed by service rules would also be eligible or would satisfy the requirement of sub section (6) of Section 24 of the Code. This intent/view of legislature however, on further consideration by it was not found tenable thus, only the amended section 24 of the Code has come into existence. After such amendment, the earlier view/intent of the legislature was given a gobye. The period of service of a person as a Public Prosecutor, Additional public Prosecutor, Assistant Public prosecutor or other prosecuting officer by whatever name called, has been deemed to be the period during which such person has been in practice as an Advocate. This deeming provision added to the Code being not in any manner in conflict with the provisions of Advocates Act and article 14 of the Constitution of India, cannot be said to be violative of those provisions. Sub Section (9) of Section 24 of the Code thus, is not liable to be declared ultra virus. ( 9 ) THE petitioners learned counsel to support his submission, in the aforesaid context has cited the case law of Kumar padma Prasad Vs. Union of India and others reported in AIR 1992 SC, page 1213 and the case of Satish Kumar sharma Vs. The Bar Council of himachal Pradesh reported in JT 2001 (l)SC,page236. s ( 10 ) IN Kumar Padma Prasads case (supra), the Honble Apex Court has elaborated upon the expression judicial officer as used in Article 217 (2) (a) of the Constitution of India and has given its meaning with the help of the expression judicial service as defined under Article 236 (b) of the Constitution of India. But in the present context while deriving meaning of the word advocate used in sub Section (8) of Section 24 of the Code, we have not to go and borrow the expression and its meaning as defined in section 2 (a) of the Advocates Act, because the expression finds a deeming provision under sub Section (9) of Section 24 of the Code for the purposes of enabling a person having experience of service as Public Prosecutor etc. for being appointed as Special Public Prosecutor by the Government under sub Section (8) of section 24 of the Code. Therefore, the principle of law, which is available in the aforesaid case of Kumar Padma Prasad (supra) is of no application in the present facts situation of the case. for being appointed as Special Public Prosecutor by the Government under sub Section (8) of section 24 of the Code. Therefore, the principle of law, which is available in the aforesaid case of Kumar Padma Prasad (supra) is of no application in the present facts situation of the case. In Satish kumar Sharmas case also the Honble apex Court while dealing with the availability of the benefit of the exception contained in para-2 of Rule 49 of the Bar council of India Rules, 1975 has held that a person getting fixed salary under the employment of a corporation governed by service rules could not get the benefit of the said exception and his enrolment as an advocate with the Bar Council is liable for termination. In this case the very enrolment with the Bar Council and entitlement of a full time salaried employee to practice as an Advocate before the Court was under challenge. Under these circumstances, the person under full time employment with a corporation seeking benefit of the exception of Rule 49 aforesaid has been refused that benefit by the Apex Court. It was not in the nature of such a dispute as we are having in the present case. The facts situation of the present case thus, do not attract application of principle of law laid down in Satish Kumar Sharmas case (supra ). ( 11 ) THE respondent no. 4 having a long experience of working as Legal advisor/public Prosecutor with Central buearo of Investigation and after laying down his office actively practicing in the courts of law as an Advocate, has if been appointed as Special Public Prosecutor under sub Section (8) of Section 24 of the code, there is no scope to challenge his such appointment on the ground of non eligibility or arbitrariness. ( 12 ) BESIDES the above, the respondent no. 4 through his supplementary Affidavit, has filed several copies of Notifications in Annexures-B and c which go to show that he on many occasions, by the Central Government and the administration of Union Territory of delhi, was appointed as Special Public prosecutor under the aforesaid provisions of sub Section (8) of Section 24 of the code as well as under sub Section (I) of section II of the Terrorist and Disruptive activities (Prevention) Act, 1987. These notifications are of post amendment dates of 1978 when sub Section (9) of Section 24 of the Code had already come into existence. Obviously, these appointments of the respondent no. 4 while he was in service and thereafter have been made by the respective Governments with the aid of the enabling clause of sub Section (9)of Section 24 of the Code. Therefore, the present appointment of the respondent no. 4 as Special Public Prosecutor under sub Section (8) of Section 24 of the Code, if has been made with the aid of sub section (9) of Section 24 of the Code, the same does not appear to be arbitrary or illegal. He is having long experience of conducting cases for the prosecution before the Courts in Delhi. His appointment as Special Public Prosecutor by respondent no. 1 in any case does not appear to be illegal or irrational. ( 13 ) FROM the side of the petitioner, an argument in respect of arbitrary fixation of remuneration payable to respondent no. 4 was advanced and it has been contended that the remuneration made permissible to Sri S. K. Saxena, is extremely exorbitant and unreasonable. The details of remuneration that have been made admissible to Sri S. K. Saxena find place in the draft notification of Greh (Police) Anubhag-3. This notification is part of the record of Law/home department of the Government of respondent no. 1. On our having summoned the aforesaid record of the appointment of Sri S. K. Saxena, the same has been made available for perusal. The aforesaid notification and the letter of Sri s. K. Saxena dated 6. 11. 2002 show that the remuneration payable to respondent no. 4 has been divided in several heads. The one time fees is the sum of rs. 25,000/- whereas per day fees, clerical charges and junior attending Court is rs. 14,300/ -. The conferencing fees for each conference is Rs. 2,200/ -. This fees is besides the travel and daily allowance, which has been claimed by Sri Saxena towards his remuneration. It appears that the Government of respondent no. 1 has consented to such demand of fees of Sri saxena and it has been duly notified. The per day appearance of respondent no. 4 to conduct the trial of the murder case entails an expenditure of about more than rs. 16,000/- besides the one time fees of rs. 25,000/ -. It appears that the Government of respondent no. 1 has consented to such demand of fees of Sri saxena and it has been duly notified. The per day appearance of respondent no. 4 to conduct the trial of the murder case entails an expenditure of about more than rs. 16,000/- besides the one time fees of rs. 25,000/ -. This definitely appears to be quite exorbitant and we hereby direct that instead of taxing the Government exchequer so unreasonably the respondent no. 1 would reduce per day appearance charge including the clerical charges and the fees of junior of respondent no. 4 in the aforesaid Sessions Trial case by rs. 8,000/- from the total of the aforesaid daily expenditure of Rs. 16,000/ -. In case, the respondent no. 4 expresses his reluctance on agreeing to such term and condition of the reduced remuneration, the respondent no. 1 would be at liberty to engage some other suitable counsel to prosecute the trial ( 14 ) THE record dealing with the appointment of respondent no. 4 as Special public Prosecutor in the aforesaid murder trial of Nitish Khatara also shows that the appointment of Sri Saxena was made in pursuance of an endorsement/direction of principal Secretary to the Chief Minister. This endorsement was made on the letter of Sri Saxena dated 23. 10. 2002. It appears that without making any scrutiny as to the suitability of the person for such appointment through the Law department, the Government Orders dated 24. 10. 2002 were taken out. It is unusual and we accordingly suggest that the Government should not adopt such method of appointment by ignoring all the norms. ( 15 ) HOWEVER, looking to the facts and circumstances of the present case that the respondent no. 4 possess due qualification and experience for his such appointment as Special Public Prosecutor in a sensational murder case, we are not inclined to quash his appointment/notification dated 26. 11. 2002 (Annexure-2 to the writ petition) and the writ petition as such having no merits, is hereby dismissed. . .