Nawal Kishore Jha v. The State and Ors

16. On behalf of GNCTD, Mr. Satyakam, ld. ASC submits that the GNCTD has raised no objection in respect of the exercise undertaken by this Court in the appointment of the APPs. Analysis

17. Heard. Public Prosecutors (‘PPs’) are appointed under Section 24 of the CrPC which reads as under: “24. Public Prosecutors.- (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. (2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district or local area. (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district. (4) 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. (5) 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). (6) Notwithstanding anything contained in sub- section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre: Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub- section (4). (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub- section (1) or sub- section (2) or subsection (3) or sub- section (6), only if he has been in practice as an advocate for not less than seven years. (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 subsection (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 Assistant 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.”

18. The above provision contemplates appointment of three categories of PPs viz.,: i. Public Prosecutors (‘PPs’). ii. Additional Public Prosecutors (‘APPs’). iii. Special Public Prosecutors (‘SPPs’).

19. Both the Central and State Governments are entitled to appoint such PPs for conducting matters on behalf of their respective Governments. Section 24(7) of the CrPC provides for eligibility criteria of not less than seven years for being appointed either as an PP or as an APP. As per Section 24(2) of the CrPC, PPs and APPs can be appointed for the High Court, District Courts or local areas. As for the appointment of APPs for the High Court is concerned, consultation with the High Court is contemplated. Insofar as PPs and APPs for a particular District are concerned, the District Magistrate has to prepare a panel in consultation with the Sessions Judge.

20. The dispute raised in the present petition arises from the fact that despite the GNCTD having sent the proposal for appointment of 44 lawyers as Standing Counsel Criminal, Additional Standing Counsel and APPs, the Petitioner’s candidature has been withheld, and not approved at the behest of the High Court. The Petitioner’s stand is that no reasons have been conveyed to him for not approving his name, and that the concurrence of the High Court is not required.

21. The role that PPs and APPs play in the administration of justice in criminal cases has been repeatedly emphasised by the Supreme Court. In State of U.P. v. Johri Mal [(2004) Supp. 1 S.C.R. 560], the Supreme Court has made important observations concerning the role played by PPs and APPs in the context of District Government Counsels (‘DGCs’) in the State of U.P. appointed for civil, criminal and revenue courts. The question that arose in the said case was whether the Petitioner therein, whose name was recommended for renewal as DGC (Criminal) by the District Magistrate, could assert a right of renewal for his appointment. The Allahabad High Court had allowed the writ petition, and had directed renewal. In the appeal from the decision of the High Court, the Supreme Court observed as under: “NATURE OF OFFICE: The District Government Counsel appointed for conducting civil as also criminal cases hold-Offices of great importance. They are not only officers of the court but also the representative of the State. The court reposes a great deal of confidence in them. Their opinion in a matter carries great weight. They are supposed to render independent, fearless and non-partisan views before the court irrespective of the result of litigation which may ensue. The Public Prosecutors have greater responsibility. They are required to perform statutory duties independently having regard to various provisions contained in the Code of Criminal Procedure and in particular Section 320 thereof. The public prosecutors and the Government counsel play an important role in administration of justice. Efforts are required to be made to improve the management of prosecution in order to increase the certainty of conviction and punishment for most serious offenders and repeaters. The prosecutors should not be over-burdened with too many cases of widely varying degree of seriousness with too few assistants and inadequate financial resources. The prosecutors are required to play a significant role in the administration of justice by prosecuting only those who should be prosecuted and releasing or directing the use of non-punitive methods of treatment of those whose cases would best be processed.”

22. The Supreme Court also observed that as long as the procedures laid out under the CrPC are followed, which are reasonable and fair, an extension cannot be claimed as a matter of right: “The appointments of Public Prosecutors, on the other hand, are governed by the Code of Criminal Procedure and/or the executive instructions framed by the State governing the terms of their appointments. Proviso appended to Article 309 of the Constitution of India is not applicable in their case. Their appointment is a tenure appointment. Public Prosecutors, furthermore, retain the character of legal practitioners for all intent and purport. They, of course, discharge public functions and certain statutory powers are also conferred upon them. Their duties and functions are onerous but the same would not mean that their conditions of appointment are governed by any statute or statutory rule. So long as in appointing a counsel the procedures laid down under the Code of Criminal Procedure are followed and a reasonable or fair procedure is adopted, the Court will normally not interfere with the decision. The nature of the office held by a lawyer vis-a-vis the State being in the nature of professional engagements, the courts· are normally charry to over-tum any decision unless an exceptional case is made out. The question as to whether the State is satisfied with the performance of its counsel or not, is primarily a matter between it and the counsel. The Code of Criminal Procedure does not speak of renewal or extension of tenure.”

23. Further, the Court distinguished the appointment of DGCs on one hand, and appointment of Judges to the High Court and Supreme Court on the other hand. With regard to ‘consultation’, in the context of appointment of DGCs, the Supreme Court made the following observations: “Appointment of the District Government Counsel cannot be equated with the appointments of the High Court and the Supreme Court Judges. A distinction must be made between professional engagement and a holder of high public office. Various doctrines and the provisions of the Constitution which impelled this Court to give meaning of 'consultation' as 'concurrence' and wherein the Chief Justice of India will have a primacy, cannot be held to be applicable in the matter of consultation between the District Magistrate and the District Judge for the purpose of preparation of a panel of the District Government Counsel. We would, however, like to lay stress on the fact that the consultation with the District Judge must be an effective one. The District Judge in turn would be well advised to take his colleagues into confidence so that only meritorious and competent persons who can maintain the standard of public office, can be found out.”

24. The Supreme Court then observed that the deletion of the process of consultation in Section 24(1) of the CrPC by the State of U.P. would be contrary to the decision of the Supreme Court in Kumari Shrilekha Vidyarthi v. State of U.P. [(1991) 1 SCC 212], and set aside the decision of the Allahabad High Court.

25. In Kumari Shrilekha Vidyarthi (supra), the Supreme Court had categorically held that the post of PPs is that of a public office. The observations are set out below:

26. Similar issues came for consideration in State of Punjab (supra), where a challenge was raised against the appointment of Petitioners therein, to the post of Law Officers of the State Government such as Assistant Advocate General, Deputy Advocate General, Senior Deputy Advocate General. The aggrieved writ petitioners/Respondent No. 1 filed a writ petition against the State Government, alleging that it had not formulated any criteria or followed any norms for the absorption of law officers on a non-discriminatory basis. The petitioners/Respondent No. 1 prayed for a direction to the State Government to frame a policy, laying down guidelines for making appointment/absorption/re-designation in the office of the Advocate General. As per the Court, the following questions were to be determined: “7.1. (i) Whether the States of Punjab and Haryana have made any realistic assessment of their requirement before making appointments of Law Officers.

7.2. (ii) Whether the States of Punjab and Haryana have formulated any scheme, policy, norms or standards for appointing Law Officers.

7.3. (iii) Whether appointment of Law Officers by the State Governments need to be made on a fair, reasonable, non-discriminatory and objective basis; and

7.4. (iv) If answer to question Nos.1, 2 and 3 are found in the negative, what is the way forward?”

27. The Supreme Court again highlighted the role played by Government counsels or PPs in the administration of justice. It also approved the decision in Johri Mal (supra). The observations of the Court are set out below:

28. After having observed as above, the conclusions of the Court in the context of appointment of PPs is set out below:

41.7. Appointment of Government Counsel must like the discharge of any other function by the Government and public bodies, be only in public interest unaffected by any political or other extraneous considerations.

41.8. The government and public bodies are under an obligation to engage the most competent of the lawyers to represent them in the Courts for it is only when those appointed are professionally competent that public interest can be protected in the Courts.

41.9. The Government and public bodies are free to choose the method for selecting the best lawyers but any such selection and appointment process must demonstrate that a search for the meritorious was undertaken and that the process was unaffected by any extraneous considerations.

41.10. No lawyer has a right to be appointed as a State/Government counsel or as Public Prosecutor at any level, nor is there any vested right to claim an extension in the term for which he/she is initially appointed. But all such candidates can offer themselves for appointment, re-appointment or extension in which event their claims can and ought to be considered on their merit, uninfluenced by any political or other extraneous considerations.

41.11. Appointments made in an arbitrary fashion, without any transparent method of selection or for political considerations will be amenable to judicial review and liable to be quashed.

41.12. Judicial review of any such appointments will, however, be limited to examining whether the process is affected by any illegality, irregularity or perversity/irrationality. The Court exercising the power of judicial review will not sit in appeal to reassess the merit of the candidates, so long as the method of appointment adopted by the competent authority does not suffer from any infirmity.”

29. On the issue of consultation with the High Court, the Supreme Court observed that such consultation holds utmost significance, inasmuch as the opinion of the Court, where the candidate has to work, would be of relevance:

30. On the specific procedure to be followed for the purposes of appointment of PPs and APPs, the Court has laid down the following broad criteria: “The third stage of the process of selection and appointment shall in the absence of any statutory provisions regulating such appointments involve consultation with the District & Sessions Judge if the appointment is at the district level and the High Court if the appointment is for cases conducted before the High Court. It would, in our opinion, be appropriate and in keeping with the demands of transparency, objectivity and fairness if after assessment and finalisation of the selection process a panel is sent to the Chief Justice of the High Court concerned for his views on the subject. The Chief Justice could constitute a Committee of Judges to review the names recommended for appointment and offer his views in regard to professional competence and suitability of candidates for such appointments. Appointments made after such a consultative process would inspire confidence and prevent any arbitrariness. The same procedure could be followed where candidates are granted extension in their terms of appointment in which case the Committee appointed by the government and that constituted by the Chief Justice could also look into the performance of the candidates during the period they have worked as State counsel.”

31. Thus, the established legal position with regard to the appointment of Advocates as PPs or APPs to represent the Central or the State Government, especially, in the context of Section 24 of the CrPC, is that the candidates concerned must be competent in nature. They are expected to render independent, and non-partisan service before the Court. PPs play a significant role in the administration of justice, and also in speedy management of prosecution of offenders, criminals, etc. Therefore, PPs deserve terms of engagement that would enable them to fulfil their responsibilities in a fair, transparent, and non-partisan manner.

32. Insofar as the role of the High Court, and the Sessions Judge is concerned in the appointment of PPs and APPs, they play an important role as PPs and other Advocates have to regularly appear before these Courts. The opinion of the Courts on the candidates’ professional capacity, integrity, ability to carry out the tasks assigned can be evaluated by the Court concerned. It is for this purpose that the process of consultation has been prescribed in CrPC. The view of the High Court on the professional competency of the lawyer would play an important role in the process of appointment, though, the appointment is primarily left to the Central or the Statement. In this context, the views of the High Court would be crucial.

33. In the background of this legal position, the facts concerning the Petitioner would have to be adjudged.

34. The Supreme Court in State of Punjab (supra) has held that judicial review of the appointment process itself in such cases is limited. If the process is not illegal, irregular, perverse or irrational and does not suffer from any infirmity, the Court would not exercise jurisdiction in a writ petition under Article 226. The Court observed as under:

35. It is not in dispute that the Petitioner’s name was part of the proposal, of a panel of 44 lawyers which was sent to the High Court by the GNCTD. As per the chronology of events handed over by Mr. Narayan, ld. Counsel, the proposal by the GNCTD was placed before the Full Court which appointed a Sub-Committee of three Sitting Judges of the High Court for conveying their views on the candidature of all 44 candidates. The said Sub- Committee interacted with all the candidates over three days. The Petitioner was also called for the said interaction. The Sub-Committee then approved the proposed names except the names of four lawyers, including that of the Petitioner. The views of the Committee were submitted to the Full Court in a sealed cover. On 25th May 2022, the Full Court conveyed its approval for appointment under Section 24(1) of the CrPC for all names, except for four names, in terms of the Sub-Committee’s report.

36. The Petitioner then sent a representation to this Court in July 2022. One more candidate whose name was not approved had also sent in a representation. The representations were again consolidated by the Sub- Committee. On 9th September 2022, all representations were rejected by the Full Court. The Petitioner then approached the Supreme Court which vide order dated 10th February 2023, permitted the Petitioner to approach the High Court. The said order is reproduced below: “1 Permission to appear and argue in person is granted.

2 The petitioner appearing in-person has an alternate remedy of moving a Petition under Article 226 of the Constitution before the High Court.

37. Primarily, the submission of the Petitioner is two-fold. Firstly, that the High Court has no role to play in evaluating the suitability of the candidature of any Advocate appointed to the posts of PPs and APPs. Secondly, the Petitioner submits that no reasons have been conveyed by the Full Court for rejecting the Petitioner’s candidature.

38. Insofar as the first issue is concerned, the legal position has already been settled by the Supreme Court, both in the case of Johri Mal (supra) and State of Punjab (supra). Under Section 24(1) of the CrPC, consultation with the High Court is mandatory, and views of the High Court with regards to the competency, suitability, professional capability of the Advocates recommended for the position of PPs and APPs are of immense significance.

39. Further, in the present case, the decision of the Full Court also has been conveyed to the GNCTD. It has been submitted by Mr. Satyakam, ld. Additional Standing Counsel, that the GNCTD has no objection to the process of appointment of the APPs or the approval of the names conveyed by the High Court. Thus, the GNCTD has not raised any challenge in respect of the rejection or the non-approval of the Petitioner’s candidature. The process of consultation that has taken place in the present case demonstrates that the GNCTD and the High Court have, in the spirit of Section 24(1) of the CrPC conducted the consultation, and arrived at a consensus/ unanimous decision. There is no difference of opinion between GNCTD and the High Court.

40. As for the second ground raised i.e., non-communication of reasons, the nature of the position of APPs, as discussed above in Johri Mal (supra) and State of Punjab (supra) and the process involved is such that it requires a broad assessment of professional capabilities, competency, ability of the candidature. While communication of reasons is one of the requirements of natural justice, the same cannot be true in all circumstances. The principles of natural justice are not rigid rules and are flexible in their application. The extent to which they apply in a particular case will depend on the background of the statutory provision, the rights that are affected, and the consequences that may result. The Supreme Court in National Institute of Mental Health and Neuro Sciences v. K. Kalyana Raman [1992 Supp (2) SCC 481] observed as under:

41. Considering the above position in K. Kalyana Raman (supra), and the facts of the present case, which involves an Advocate’s candidature for appointment of an APP, the communication of reasons may, in fact, do more harm to the candidate concerned.

42. The simple non-approval, conveyed by the High Court after undertaking a rigorous and a systematic process of scrutiny of the candidates by a Sub-Committee, and placing the same before the Full Court, is in line with the decision of the Supreme Court in State of Punjab (supra).

43. The requisite procedure has been followed in two rounds. Firstly, as part of the complete list of 44 Advocates and, secondly, when the Petitioner filed a representation. On both occasions, the Sub-Committee of the High Court considered the matter, and gave its recommendation to the Full Court which accepted the same. The GNCTD has also accepted this position.

44. There is no perversity or irregularity or illegality in the process that has been followed in the selection of the APPs. The consultation process between the GNCTD and the High Court is, as required in such cases, considering the role played by PPs.

45. The Petitioner is a practicing Advocate. The communication or disclosure of any reasons in the public domain could also harm his professional standing much more than mere non-approval of his candidature as an APP. The non-approval on this occasion of engagement of PPs and APPs may not act as a bar on the Petitioner from applying again in future. If, however, reasons are sought and are in fact penned down and given to the Petitioner, it may prove to be detrimental to the Petitioner himself.

46. The consultation process does not contemplate communication of reasons as is being sought by the Petitioner. Given that the matter has been considered twice by the Full Court, and twice by the Sub-Committee and has been accepted by the GNCTD, the present petition does not call for interference of this Court exercising jurisdiction under Article 226 of the Constitution of India.

47. Accordingly, the present petition is dismissed. All pending applications are also disposed of. Nothing said in this order shall affect the future prospects of the Petitioner in any other professional engagements.

PRATHIBA M. SINGH JUDGE JULY 5, 2023 dj/dn