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2015 DIGILAW 559 (JK)

Allahudin Ganai v. State of J&K

2015-10-27

HASNAIN MASSODI, N.PAUL VASANTHA KUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This PIL is filed by an Advocate praying for issuing a direction to the respondents to comply with the directions issued by Hon'ble the Supreme Court in Criminal Appeal No. 1640/2010, dated 23.01.2013 titled as Thana Singh v. Central Bureau of Narcotics, wherein the procedure of appointment of Public Prosecutors was suggested as mandated under Section 24 of the Code of Criminal Procedure, 1973 with a further direction that the District and Sessions Judge shall make recommendations for appointment in consultation with the Administrative Judges/Portfolio Judge/Inspecting Judge, in-charge of looking after the administration of the concerned Sessions Courts. In the affidavit filed in support of this writ petition, it is contended by the petitioner that in order to enforce Penal Laws, the prosecutor has to play an important role in a criminal justice delivery system. The Courts of Sessions are conducting the trials of heinous/grave offences where the Public Prosecutor is expected to conduct the proceedings in dispassionate manner, thereby the appointment of Public Prosecutor is of great importance and he cannot be a police prosecutor who must ensure the conviction of real culprits and also ensure that no innocent person is punished. The Public Prosecutor should be a man of integrity, well-versed in law and he should be chosen based on merit and not on any other consideration including political. As per Section 493 of Cr.P.C. 1989, in every trial before the Court of Sessions, the prosecution shall be conducted by the Public Prosecutor. 2. Section 492 Cr.P.C. empowers the Government to appoint Public Prosecutor, but till date the Government of Jammu and Kashmir has not framed any policy/guidelines with respect to the appointment of Public Prosecutors and appointments are being made on political considerations and it is alleged that in the State of Jammu and Kashmir most junior lawyers having no experience are conducting the criminal trials before the Sessions Courts. The importance of appointing a good and competent person as a Public Prosecutor was emphasized by Hon'ble the Supreme Court in the above referred judgment wherein it is held that role of the courts being to discover the truth and the prosecutor should be an honest person of a highest integrity who has the caliber and credibility to find out the truth and punish the guilty. 3. 3. When the matter was listed for admission on 23.07.2015, learned Advocate General takes notice and prayed for time for filing response. During the pendency of this writ petition, a Committee was constituted at the instance of Advocate General by the Government by Government Order No. 2265-LD (Acq.) of 2015, dated 11.08.2015 for framing guidelines/procedure for appointment of Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors. The meeting of the Committee was convened on 18.08.2015 in which Additional Secretary to Government, Department of Law, Justice and Parliamentary Affairs also participated. The Director of Prosecution was represented by Deputy Director, Prosecution. The Members were requested to submit their views and all the views expressed were considered in detail and thereafter it was decided to frame guidelines/procedure for appointment of Public Prosecutors. The procedures/guidelines suggested by the Committee are as follows:- I. Qualification for appointment as Public Prosecutor: In order to be eligible for appointment as Public Prosecutor a person should: i. Be enrolled/registered as an Advocate with the High Court of Jammu & Kashmir. ii. Have a minimum actual experience of 07 years of handling Criminal cases including that of having conducted Session trials. iii. Be proficient in Urdu writing and reading. iv. Possessing good moral character/integrity and carries a good reputation in legal fraternity. II. Tenure of Public Prosecutor: 1. The first appointment of each Public Prosecutor/Additional Public Prosecution shall normally be for a period of one year, which may be extended from time to time on the basis of performance. 2. Renewal of appointment: The term of Public Prosecutor/Additional public Prosecutor can be renewed on yearly basis subject to satisfactory performance. Before granting extension it shall be necessary to make valuation of the performance of Public Prosecutor/Additional Public Prosecutor during preceding term. In this regard the views/comments be sought from the concerned Sessions Judge and the concerned views/comments shall be given due weightage. The statement/report of the cases pending or disposed of by the concerned District Court submitted through District Litigation Officer, who is in-charge of the entire Litigation work on behalf of State in the particular District falling within his/her jurisdiction shall also be taken note of." 4. The said recommendation of the Five Member Committee dated 18.08.2015 was forwarded to the Government and it is pending approval before the Government. 5. The said recommendation of the Five Member Committee dated 18.08.2015 was forwarded to the Government and it is pending approval before the Government. 5. When the matter was listed on 13.10.2015, this Court taking note of the Committees Report dated 18.08.2015 expressed its view that the views of the Principal Sessions Judge/Sessions Judge of the concerned District shall also be obtained before appointing the Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors bearing in mind Section 24(4) of Cr.P.C. 1973 who shall consult the portfolio judge of the District in terms of para 28 of the judgment of Hon'ble the Supreme Court cited supra which reads thus: "28. Public Prosecutors play the most important role in the administration of justice. Their quality is thus of profound importance to the speed and outcome of trials. We have been informed that Special Public Prosecutors for the Central Bureau of Narcotics are appointed by the Ministry of Home Affairs after scrutiny by the Ministry of Law and Justice, on the recommendation of the District and Sessions Judge concerned. We suggest that the procedure of appointment, placed before us, be brought in line with that generally followed for the appointment of public prosecutors, as mandated under Section 24 of the Code of Criminal Procedure, 1973. However, for the present, we direct that the District and Sessions Judge shall make recommendations for such appointment in consultation with the Administrative Judge/Portfolio Judge/Inspecting Judge, incharge of looking after the administration of the concerned Sessions Division." 6. With these observations, this Court adjourned the matter for getting instructions/response from the Government by today. 7. Today, when the matter was heard, learned Additional Advocate General B.A. Dar, submitted that the said suggestion of this Court has also been forwarded to the Government for consideration along-with the reports submitted by the Committee. 8. With these observations, this Court adjourned the matter for getting instructions/response from the Government by today. 7. Today, when the matter was heard, learned Additional Advocate General B.A. Dar, submitted that the said suggestion of this Court has also been forwarded to the Government for consideration along-with the reports submitted by the Committee. 8. As the Committee was constituted by Government Order No. 2265-LD (Acq.) of 2015, dated 11.08.2015 and Committee having submitted its report/recommendations which are also mostly in tune with the judgment of Hon'ble the Supreme Court and also the submission made by learned Additional Advocate General that the suggestion made by this Court to get the recommendations of the Principal Sessions Judge of the concerned District as stated supra can also be obtained before appointing the Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors and the said matter is pending before the Government as on date for its approval, no purpose will be served in keeping this petition pending before this Court. 9. Hence, this writ petition is disposed of with a direction to the respondents to take a decision with regard to the guidelines/norms for appointment of Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors bearing in mind the judgment of Hon'ble the Supreme Court along-with the report of the Committee and the suggestions made by this Court and finalize the norms within a period of four weeks from the date of receipt of copy of this order and till such time no Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors shall be appointed. Writ petition (PIL) is disposed of with above directions.