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2010 DIGILAW 137 (AP)

B. Venkateswara Rao v. State of Andhra Pradesh

2010-02-25

L.NARASIMHA REDDY

body2010
JUDGMENT : The Court of I Additional District and Sessions Judge, in every district, is designated to try the cases under the A.P. Protection of Depositors and Financial Establishments Act 1959 (for short ‘the Act’). The petitioner was appointed as a Special Public Prosecutor for the Court of I Additional District and Sessions Judge, Visakhapatnam, under subsection (8) of Section 24 of the Code of Criminal Procedure (for short, ‘the Code’), by the 1st respondent through its orders, in G.O.Rt.No.992, Law Department, dated 12.06.2007. On expiry of the term of the petitioner, the Additional Public Prosecutor for the Court of III Additional District Judge, Visakhapatnam, was placed in-charge of the cases, that were dealt with by the petitioner. In modification of that arrangement, the District Collector issued proceedings, dated 07.05.2009, continuing the petitioner as such till new appointment is made. The 1st respondent issued G.O.Ms.No.40, Law Department, dated 07.01.2010, appointing the 2nd respondent, as the Special Public Prosecutor, for the said Court. The petitioner challenges the same, on several grounds. It is pleaded that the petitioner was chosen to deal with a particular category of cases and that for the past two years, he became acquainted and has handled them to a substantial extent. According to him, the appointment of the 2nd respondent would be detrimental to the interests of the State. It is also urged that serious procedural irregularities have taken place in the appointment of the 2nd respondent. A detailed counter-affidavit is filed by the 2nd respondent, denying the allegations made and contentions advanced on behalf of the petitioner. It is pleaded that the petitioner does not have any right to continue in the post and that the impugned G.O., was issued in the same manner as was done when the petitioner was appointed. Sri K.V.Subramanya Narsu, learned counsel for the petitioner, submits that the procedure for appointment of a Special Public Prosecutor, under sub-section (8) of Section 24 of the Code, is substantially different from the one prescribed under subsections (3) to (7) of that Section, and that in the instant case, the 1st respondent followed the procedure under those provisions, while appointing the 2nd respondent as a Special Public Prosecutor. He further contends that in case the same procedure applies for the appointment of Special Public Prosecutors also, the District and Sessions Judge ought to have enclosed report as to the performance of the petitioner. He further contends that in case the same procedure applies for the appointment of Special Public Prosecutors also, the District and Sessions Judge ought to have enclosed report as to the performance of the petitioner. He submits that failure in this regard resulted in denial of an opportunity for the petitioner to be considered. Learned Government Pleader for Home and Sri B.Adinarayana Rao, learned counsel for the 2nd respondent, on the other hand, submit that the mere fact that a panel was forwarded by the District Judge, even for appointment of a Special Public Prosecutor does not invalidate the exercise. According to them, the stand of the petitioner is not only vague but is self-contradictory. The petitioner was appointed as a Special Public Prosecutor, under Section 24(8) of the Code in the year 2007, vide G.O.Rt.No.992, dated 12.06.2007. From a perusal of that G.O., it is not clear as to whether the appointment preceded the sending of a panel by the District Collector in consultation with the District Judge. The term of the petitioner expired and he was continued as in-charge till a new incumbent is appointed. The 2nd respondent was appointed as Special Public Prosecutor for a period of three years vide G.O.Ms.No.46, dated 07.01.2010. In this G.O., there is a reference to the proceedings, dated 26.10.2009 of the District Collector, Visakhapatnam. Therefore, it has to be presumed that the appointment is with a consideration of the panel. Two principal contentions are urged on behalf of the petitioner. The first is that the appointment of a Special Public Prosecutor from out of a panel, forwarded by the Collector is contrary to law; and the second is that the District and Sessions Judge was under obligation to forward a report, assessing the performance of the petitioner during his tenure, and that the failure in this regard would vitiate the proceedings. Section 24 of the Code provides for appointment of Public Prosecutor of different categories. Broadly stated, they fall into four categories. a) Public Prosecutors to be appointed by the State Government in the High Court; (sub-section-1) b) Public Prosecutors to be appointed by the Central Government; (sub-section-2) c) Public Prosecutors to be appointed in the Districts; (sub-sections-3 to 6); and d) Special Public Prosecutors for conducting any case or class of cases (sub-section-8). No process of consultation, as such, is prescribed for appointment against first two categories. No process of consultation, as such, is prescribed for appointment against first two categories. Sub-sections (3) to (6) of Section 24 of the Code, prescribe the procedure for appointments of the third category. This includes preparation of a panel of advocates of a particular standing by the District Collector to the Government in consultation with the District Judge. The requirement is so mandatory that sub-section (5) stipulates that the Government shall not appoint an advocate as a Public Prosecutor unless his name appears in the panel to be forwarded by the District Collector. Sub-section (8) of Section 24 of the Code, providing for appointment of Special Public Prosecutor, reads as under: “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.” Either directly or by necessary implication, it does not refer to the consultation process. The appointment under this provision is almost akin to the one, under sub-sections (1) and (2). In Paramjit Singh Sadana v. State of A.P. (2008 (2) ALT (Crl.) 339), a learned Single Judge of this Court took the view that the consultation process provided for under sub-sections (4) and (5) of Section 24 of the Code would also apply to the appointment of a Special Public Prosecutor under sub-section (8). This was overruled by a Division Bench of this Court in its judgment in State of Andhra Pradesh v. Margadarsi Financiers 2009 (2009 (2) ALT (crl.) 260) over-ruled the said judgment. That was a case where a Special Public Prosecutor was appointed without any consultation process. The Division Bench repelled the contention, that the appointment of a Special Public Prosecutor does not become vitiated, for want of consultation and forwarding of panel under Sections 4 and 5 of Section 24 of the Code. In a way, the case on hand is just the opposite. With the judgment of a Division Bench of this Court, referred to above, the position of law becomes clear, namely, that a Special Public Prosecutor can be appointed without there being any panel forwarded by the District Collector, in consultation with the District Judge. In this case, the appointment of the 2nd respondent was made on the basis of the panel. In this case, the appointment of the 2nd respondent was made on the basis of the panel. Though it was competent for the 1st respondent to appoint the 2nd respondent as Special Public Prosecutor, without calling for, or consideration of the panel, the mere fact that such a panel existed, does not, in any way, render the appointment, illegal. The reason is that, though such a procedure is not mandatory for appointment of a Special Public Prosecutor, it is not prohibited. Secondly, if the 1st respondent could have appointed, the 2nd respondent, without there being any panel, an objective exercise in ascertaining from the concerned authorities, as to the capabilities of the persons does not become a vitiating factor. Being the ultimate executive authority of the State, the 1st respondent can choose any mechanism to satisfy itself to arrive at a just and proper conclusion as long as the step chosen by it is not prohibited by law. Therefore, the first contention advanced on behalf of the petitioner cannot be accepted. The second contention is, in a way, self-contradictory. The petitioner reconciles to the fact that a panel was forwarded and that the 2nd respondent was chosen out of it. His grievance is that his name was not included and that the District Judge did not forward the assessment about his functioning for the previous term. To certain extent, the discussion undertaken in the preceding paragraphs cover this aspect also. The consultative process is not mandatory for appointment of a Public Prosecutor. Secondly, even where the panel is required to be forwarded, the discretion of the District Collector to prepare a panel in consultation with the District Judge, is almost unfettered. Further it is no part of the duty of the District Judge to send the report of assessment about an existing incumbent, either under Section 24 of the Code, or under G.O.Ms.No.187, which prescribes the procedure for appointment of Law Officers. Viewed from any angle, the Writ Petition does not merit any consideration, and it is accordingly dismissed. There shall be no order as costs.