Smt. Deepti Chatterjee vs S.K.Chaterjee

This petition has been filed challenging the order issued by respondent no.1 dated 02.06.2016, whereby respondent no.4 was appointed as Government Pleader/Public Prosecutor in the District Court Bhind on the ground that the petitioner has been removed from the post of Government Pleader/Public Prosecutor and the appointment of respondent no.4 is contrary to the provisions contained in Section 24 of the Code of Criminal Procedure as there was no recommendation of District & Sessions Judge, Bhind in regard to appointment of respondent no.4 on the post of Government Pleader/Public Prosecutor, District Bhind.

It has been submitted that there was no consultation as is envisaged under Section 24 (4) of Cr.P.C., therefore the appointment made of respondent no.4 is bad in law. It is also submitted that initially the applications were invited for appointment of Assistant Government Pleadeer (AGP) and therefore the post of Government Pleader could not have been filled by the State Government.

Learned counsel for the State and also for respondent no.4 have submitted that firstly the petitioner has no cause of action as he was not a candidate for selection as Government Pleader and secondly the appointment of the petitioner as is contained in Annexure P/2 dated 02.07.2014 was only for a period of one year and therefore after expiry of that period of one year, the State was free to make its own appointments on the post of Government Pleader/Public Prosecutor and therefore it cannot be said that any prejudice has been caused to the petitioner specially when he was not a candidate for appointment in terms of the notice issued by the authority for appointment in terms of which order Annexure P/1 has been issued. It is also submitted that forwarding of the names by the District & Sessions Judge, Bhind itself reveals that there was a recommendation by the District & Sessions Judge, Bhind as is apparent from the list enclosed by the petitioner himself as Annexure P/5, in which the name of respondent no.4 is mentioned at serial number 1. It is also submitted that this list was forwarded in terms of the communication dated 31.08.2015. It is seen that the petitioner has not placed on record the order dated 31.08.2015 issued by respondent no.1 in relation to which the names were forwarded to the Collector by the District & Sessions Judge, Bhind vide Annexure P/5. This fact is revealed from Annexure P/6 forwarding letter of the District Magistrate, District Bhind addressed to respondent no.1, wherein he has given a reference of the letter dated 31.08.2015 issued by the Secretary Government of Madhya Pradesh, Law & Legislative Affairs Department, Bhopal. In the communication Annexure P/6 dated 17.09.2015, it is clearly mentioned that the bio-datas are being sent for the post of the Government Pleader and AGP, i.e., Assistant Government Pleader, therefore the first limb of the arguments advanced by the learned counsel for the petitioner that the names were only called for the post of AGP and not for Government Pleader is factually incorrect inasmuch as the petitioner has placed reliance on communications dated 13.10.2014 Annexure P/3 and dated 10.12.2014 Annexure P/4, which is in relation to appointment of AGP, but it is evident from the impugned order Annexure P/1 that this order has been issued in reference to the communication forwarded by the Collector, District Bhind dated 17.09.2015, and in the communication dated 17.09.2015, there is a specific mention of the order dated 31.08.2015, which has not been filed by any of the parties to throw light as to for which post the applications were invited but nonetheless the communication dated 17.09.2015 makes it abundantly clear that the applications were invited for the post of Government Pleader as well as Assistant Government Pleader and therefore this argument is of no significance.

As far as the second argument of the petitioner is concerned that there was no effective consultation in terms of the provisions contained in Section 24 (4) of Cr.P.C., then it will be proper to reproduce the provisions contained under Section 24 (4) of Cr.P.C., which reads as under:- "The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district."

At this point of time it will also be relevant to quote the provisions contained in Section 24 (5), Cr.P.C., which reads as under:- "No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the Panel of names prepared by the District Magistrate under sub-section (4)."

Thus, it is apparent that as far as the requirement of consultation between the District Judge and District Magistrate is concerned, the District Magistrate had sought bio-datas from District Judge and the same were forwarded with recommendations by the District Judge, therefore forwarding of these bio-datas in itself reveals that there was a meeting of the mind between the District Magistrate and the Sessions Judge inasmuch as no methodology has been prescribed under the provisions of Section 24 (4), Cr.P.C. prescribing that how consultation between the District Magistrate and the Sessions Judge should take place. Therefore, this argument also does not hold good that in absence of any consultation, the appointment of respondent no.4 is arbitrary and illegal. In fact, in terms of the provisions contained in Section 24 (5), Cr.P.C., since the name of the petitioner was not mentioned in the list of the persons seeking appointment on the post of Public Prosecutor, he could neither been considered nor appointed as the Government Pleader/Public Prosecutor in terms of the provisions contained in Section 24 (5), Cr.P.C.

Petitioner has placed reliance on the judgment of the Hon''ble Supreme Court in the case of State of Punjab v. Brajeshwar Singh Chahal as reported in (2016) 6 SCC 1, wherein the aspect of judicial review as decided in the Case of Shrilekha Vidyarthi v. State of MP : (1991) 1 SCC 212 has been discussed, has been referred to press home that judicial review of the action in matter of appointment of Public Prosecutor is permissible. There is no dispute about this proposition that judicial review of the State action is permissible, but at the same time the petitioner is required to make out grounds for such judicial review showing that the State action was arbitrary, illegal, mala fide or capricious or in violation of any of the statutory provisions. In the present case, the petitioner has failed to point out any of the requirement calling for interference in the impugned order.

Similarly, the petitioner has placed reliance on the judgment of this Court in the case of Ajay Pandey v. State of MP & Others as reported in 2007 (1) MPHT 531, wherein specific attention of this Court has been drawn to paragraph 10 wherein the ratio is that the Court can take into consideration special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. As far as expediency and interest of justice aspect is concerned, that is to be judged on the touch stone of the facts of the case. In the present case, facts of the case do not reveal any expediency to interfere in the impugned order of appointment of respondent no.4 as Public Prosecutor.

Petitioner has also placed reliance on the judgment of the Division Bench of this Court in the case of Badri Vishal Gupta v. State of MP & Others as reported in 2007 (3) MPHT 453 (DB) to bring home that merely forwarding of the names by the District Judge does not amount to consultation as prescribed under Section 24 of Cr.P.C. and specific reference has been made to para 16 of the said judgment. In para 16 of the said judgment, this Court has held that the Courts have to see public interest vis-a-vis private interest while exercising powers under Article 226 of the Constitution of India. In the present case, it is apparent that the petitioner was given appointment as Government Pleader for a period of one year vide order dated 02.07.2014. This period was over on 01.07.2015 yet he was continuing on the post of Government Pleader by virtue of the fact that nobody else was appointed in place of the petitioner and therefore he had developed a vested interest to continue as Government Pleader till the impugned order Annexure P/1 was issued. It is also an admitted position that the petitioner had not applied for the post of Government Pleader in terms of the communication dated 31.08.2015 issued by the respondent no.1, therefore merely because the petitioner had developed a vested interest to continue by virtue of a lacuna on the part of respondent no.1 in not inviting the applications prior to the date on which petitioner''s tenure was to come to an end, it cannot be said that the petitioner is entitled to challenge the appointment of respondent no.4 specially when he was not a candidate in terms of the requirement of Section 24 (5), Cr.P.C. Thus, even this judgment of the Division Bench is of no assistance to the petitioner.

Thus, in the opinion of this Court, the petitioner has no cause of action to challenge the impugned order and there are no grounds to challenge the same. Thus, the petition fails and is hereby dismissed.