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ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

Tuesday, March 26, 2013

appointment of addl. public prosecutor= a practicing advocate in Punganur town of Chittoor District, has filed this Writ Petition questioning the action of respondent Nos.1 to 5 in appointing the sixth respondent, vide G.O.Rt. No.330, Law (LA & J- Home-Courts. A1) Department dated 15.02.2012, as an Additional Public Prosecutor, without verifying his antecedents and social status, as arbitrary and illegal. = As the relevant material, regarding pendency of Crime No.66 of 2011, was not taken into consideration by the District Collector while examining the "fitness" of the 6th respondent for being empanelled in the panel of advocates forwarded to the Government for being appointed as Additional Public Prosecutor and, as this relevant fact, has not only an important bearing on the decision making process but also on the integrity of the institution of the public prosecutor, the impugned G.O. must be, and is accordingly, set aside. It is open to the Government either to consider the other names in the panel or call for a fresh panel from the District Collector for appointment to the post of Additional Public Prosecutor. In case a fresh panel is called for, the District Collector shall, in the light of the observations made hereinabove, prepare a panel afresh in accordance with law, and forward the same to the Government for its consideration. Pending appointment of an Additional Public Prosecutor afresh, it is open to the respondents to make interim arrangements and permit any other Public Prosecutor, other than the 6th respondent, to hold additional charge till appointment is made afresh.


THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN            

WRIT PETITION No.6347 of 2012  

15-02-2013

P.N.S. Prakash....Petitioner

The Secretary to Govt. of A.P. Legislative Affairs & Justice, Law Department,
Secretariat Buildings, Hyderabad and five others....Respondents

Counsel for the petitioner:  Sri Gade Venkateswara Rao

Counsel for respondents :  G.P. for Home Sri K. Ramamohan Mahadeva  

<GIST:

>HEAD NOTE:  

?Citations:
1) (2011) 4 SCC 1
2) AIR 1970 Madras 63
3) (1951) 342 US 98
4) (2003) 4 SCC 579
5) (1988) 4 SCC 59
6) (1996) 2 Crimes 358
7) (1964) 3 SCR 397: AIR 1965 SC 328
8) 1986 CriLJ 383
9) AIR 1983 SC 194
10) AIR 2005 Bom.431
11) (1995 CriLJ 3143
12) AIR 1967 SC 295
13) (1977) 1 SCC 133
14) (2001) 3 SCC 646
15) (1990(4) SCC 356
16) (2007(2) SCJ 146
17) (AIR 1969 SC 707
18) 2008 (2) ALT 429
19) 1994(1) PLJR 565 (DB
20) (1993) 3 SCC 552
21) (1989) 4 SCC 318
22) (2003) 3 SCC 321
23) AIR 1962 SC 386
24) AIR 1967 SC 1910
25) Judgment in W.P.No.15548 of 2008 dated 30.7.2008
26) (1997(2) ALD (Cri.) 502 (SC)
27) AIR 1968 117
28) 2004 (2) ALD Cri 935) (SC
29) (1985) 2 SCC 537
30) 1996 (4) ALT 123 (DB
31) (2009) 7 SCC 1
32) AIR 1967 SC 1458

ORDER:
        The petitioner,
a practicing advocate in Punganur town of Chittoor
District, has filed this Writ Petition questioning the action of respondent
Nos.1 to 5 in appointing the sixth respondent, vide G.O.Rt. No.330, Law (LA & J-
Home-Courts. A1) Department dated 15.02.2012, as an Additional Public 
Prosecutor, without verifying his antecedents and social status, as arbitrary
and illegal.
He seeks a direction from this Court to set aside the said G.O;
and to direct respondent Nos.3 to 5 to take appropriate action against the sixth
respondent in suppressing his antecedents while submitting his application for
the said post.
The Writ Petition was filed on 05.03.2012, and came up for
admission on 09.03.2012.  Notice before admission was ordered on 26.04.2012, and
the petitioner was permitted to take out notice by personal service on the sixth
respondent.
Facts, in brief, are that the District Collector, Chittoor, vide letter dated
07.09.2011, requested the District & Sessions Judge, Chittoor to forward a panel
of names for appointment as an Additional Public Prosecutor.
  The District Judge,
vide proceedings dated 15.09.2011, requested the Assistant Sessions Judge,
Punganur to submit a panel of five Advocates for appointment to the said post.

The Assistant Sessions Judge, Punganur issued circular dated 20.09.2011 
requesting the President and members of the Bar Association, Punganur to furnish
their bio-data and certificates. In his bio-data submitted on 22.09.2011, the
sixth respondent did not state that any criminal complaint/case was pending
against him. 
The Assistant Sessions Judge, Punganur, vide letter dated
23.09.2011, forwarded a panel of five names to the District Judge, Chittoor who,
vide letter dated 14.10.2011, forwarded the said panel, along with the bio-data
of the advocate-panelists, to the District Collector.  
The Learned District
Judge, in his proceedings dated 14.10.2011, records that considering the
qualification, age, social status, standing at the Bar as an Advocate, nature of
practice, the number of sessions cases conducted, efficiency, reliability,
quality of advocacy, general reputation and personality, he had furnished a
panel of five names of Advocates with their respective bio-data in the order of
merit; and no woman and scheduled tribe candidates were available.  The sixth
respondent's name is shown at serial No.5 therein. 
 Along with the said letter
the signed bio-data, of each of the five panelists, was enclosed.  The District
Collector, vide letter dated 20.10.2011, called for a report from the
Superintendent of Police, Chittoor who, vide proceedings dated 10.11.2011,
submitted his report to the District Collector after verifying the antecedents
of the advocates in the panel recommended by the District and Sessions Judge.

The letter of the Superintendent of Police, Chittoor, to the District Collector,
dated 10.11.2011 records, among others, regarding the sixth respondent that:-
"he is having good reputation in the public and with other advocates as well as
court staff and police officials.  
He was appointed as Standing Counsel for
Punganur Municipality from 30.11.2005 to 2008.  
He has not come to any adverse 
notice, as seen from the records of concerned police station and District
Special Branch Office, Chittoor".

The District Collector, vide proceedings dated 25.11.2011, sent his proposals to
the government requesting that any one of the advocates in the panel be
appointed as the Additional Public Prosecutor. While forwarding the names of the
five Advocates, including the sixth respondent, the District Collector extracted
the contents of the antecedent reports, of all the five Advocates including the
sixth respondent, in the said letter dated 25.11.2011.  The report of the
District and Sessions Judge, Chittoor; the antecedent verification report of the
Superintendent of Police, Chittoor; and the bio-data of each of the advocates in
the panel were also forwarded along with the said letter. Thereafter the first
respondent, in the exercise of its powers under Section 24(3) Cr.P.C read with
G.O.Ms. No.187, dated 06.12.2000,  appointed the sixth respondent as the
Additional Public Prosecutor for the Court of the Assistant Sessions Judge,
Punganur by G.O.Rt. No.330 dated 15.2.2012.
 Neither the District Collector when
he sent his proposals to the Government, nor the Government when it appointed
the sixth respondent as the Additional Public Prosecutor, were made aware that
FIR No.66 of 2011 was registered in the Panjani police station, among others,
against the sixth respondent and the final report, under Section 173(2) Cr.P.C,
had not been filed in the Court of the Judicial First Class Magistrate, Punganur
by then.
The case diary placed this Court, with respect to FIR No.66 of 2011, shows that
the complainant had submitted a complaint to the Judicial Magistrate of First
Class, Punganur on 10.11.2010 stating that, though she had lodged a complaint
against the accused before the Panjani police station, the concerned police had
not taken steps to register the case; and, hence, she was constrained to file a
complaint before the Court as the accused had committed offences punishable
under Section 147, 148, 354, 307 and 506 read with 34 IPC.
The complainant
requested the Court to take the case on file, enquire thereinto and punish the
accused according to law, or forward the case to the Panjani police station for
necessary action.
The docket proceedings of the Court of the Judicial Magistrate of First Class,
Punganur, (which forms part of the case diary), discloses that the complainant
was present in the Court on 10.11.2010, and the matter was adjourned for hearing
to 02.12.2010; though the complainant was present in the Court on 02.12.2010,
the case was adjourned to 07.01.2011 at the request of her Counsel; while the
complainant was again present on 07.01.2011, the presiding officer was on
training and, as such, the case was posted to 07.03.2011;  the case again
suffered adjournment for the same reason from 07.03.2011 to 01.04.2011; though
the complainant was again present in the Court on 01.04.2011, the case was
adjourned to 15.04.2011 for recording her sworn statement; the complainant was
present in the Court also on 15.4.2011 but the case was posted to 10.05.2011 at
the request of her Counsel; as the Presiding Officer was on vacation on
10.5.2011, the case was adjourned to 02.06.2011 on which date the sworn 
statement of the complainant was recorded. On a perusal of the complaint, the
Learned Magistrate endorsed on the docket sheet that the allegations made in the
complaint, prima facie, attracted the ingredients punishable under Sections 354,
448 read with 34 IPC; and hence the complaint was being forwarded, to the
Panjani Police Station, under Section 156(3) Cr.P.C for investigation and
report.  It is, thereafter, that FIR No.66 of 2011 was registered on the file of
the Panjani Police Station on 07.06.2011 for offences under Sections 448, 147,
148, 323, 354, 307, 506 read with Section 34 IPC.
The sixth respondent herein is accused No.3 in FIR No.66 of 2011.  The
complainant in FIR No.66 of 2011, a lady aged 45 years residing at Rayalapeta
Village of Panjani Mandal, Chittoor District, alleged in her complaint that the
first accused came to her house and caught hold of her daughter's hand with a
view to outrage her modesty; her daughter cried out aloud, on hearing which the
complainant came to the spot; on seeing her, the first accused escaped from the
scene of the offence; on observing that the complainant's son was coming towards
the house, the second accused shouted and chased him with a broomstick; on
hearing the voice of the second accused, accused Nos.3 to 7 armed with deadly
weapons came to the house of the complainant, beat her son and caused injuries
to his ear; on the same day, at about 5.00 PM, all the accused armed with
sticks, stones and iron rods came to her house; on seeing them the complainant
and her family members went inside, and bolted the house from inside, out of
fear; they requested the accused not to beat them despite which all the accused
pushed the door open, and beat the complainant, her husband, her daughters and
her sons with sticks, stones and iron rods; they were also kicked and beaten
with hands causing injuries; the accused also abused the complainant in filthy
language, warned her to leave the village, and threatened her and her family
members with dire consequences if they stayed in the house; the complainant
lodged a complaint against the accused before the Panjani Police Station, but no
action was taken; and, hence, she was filing a private complaint under Section
200 Cr.P.C before the Judicial Magistrate of First Class, Punganur.
According to the petitioner it was in everyone's knowledge that the sixth
respondent, also a practicing Advocate in Punganur town, was involved in Crime
No.66 of 2011 dated 07.06.2011 for offences under Sections 448, 147, 148, 323,
354, 307, 506 read with 34 IPC on the file of Panjani Police Station as the
third accused, despite which his name was recommended by respondent Nos.3 and 4  
to the first respondent, for his appointment as an Additional Public Prosecutor
in the Court of the Assistant Sessions Judge, Punganur, without taking into
consideration his antecedents and his social status; based on the said
recommendation, the first respondent had appointed the sixth respondent as the
Additional Public Prosecutor to the said Court for a period of three years; the
antecedents of the sixth respondent disqualified him from appointment; and the
petitioner has been discriminated against in selection to the said post, though
he was eligible and his antecedents were without blemish.
In the counter affidavit dated 19.12.2012, filed on behalf of the first
respondent, it is stated that the Superintendent of Police, Chittoor had
submitted a report stating that the sixth respondent had not come to any adverse
notice as seen from the records of concerned Police Station and District Special
Branch Officer, Chittoor; the first respondent had no knowledge, as per the
record, regarding registration of the crime against the sixth respondent; the
sixth respondent had not disclosed registration of any crime against him;
G.O.Ms. No.187 is silent on the aspect of pending criminal cases; the Government
relies upon police verification reports on the panelists, and selection of those
advocates who are not involved in any criminal cases; the impugned G.O. is not
illegal as the appointment was made on the basis of the record available with
the Government; the Government is empowered to appoint Additional Public
Prosecutors only from the panel of names recommended by the District Magistrate
who has to prepare the panel in consultation with the District and Sessions
Judge; the Government cannot deviate from the panel of names recommended by the  
Collector and District Magistrate; and, in case the sixth respondent had
suppressed the criminal cases, suitable action would be initiated by the
Government as per law.
The third respondent-District Collector, in his counter affidavit dated
18.12.2012, would submit that,  on the basis of the report of the Superintendent
of Police, Chittoor dated 10.11.2011, their Office had, vide proceedings dated
25.11.2011, sent the proposals to the Government, requesting that any one of the
advocates in the panel be appointed as the Additional Public Prosecutor; the
antecedents of the sixth respondent had been verified by the Superintendent of
Police, Chittoor District at the ground level, and nothing adverse against the
sixth respondent had come to notice; and later it came to light, after enquiring
with the Superintendent of Police, Chittoor, that the sixth respondent figured
as an accused in Crime No.66 of 2011 of Panjani Police Station.
In his counter affidavit the Superintendent of Police, Chittoor (fifth
respondent) would state that the District Collector, Chittoor had requested him,
vide letter dated 20.10.2011, to send the antecedents of the panel advocates,
including the sixth respondent; an enquiry was caused thereinto; he sent a
detailed report, vide letter dated 10.11.2011, to the District Collector; the
antecedents of the sixth respondent had been verified at the ground level, and
nothing adverse had come to notice; the investigation in Crime No.66 of 2011
disclosed it to be a false case; the Sub-Divisional Police Officer, Palamaner
had, by proceedings dated 15.07.2011, referred the case as false; notice was
served on the complainant on 26.08.2012; and, as nothing adverse had come to his
notice, nothing had been reported in relation to the antecedents of the sixth
respondent to the District Collector, Chittoor.
In his additional affidavit dated 21.01.2013, the fifth respondent states that
no evidence was adduced in support of the alleged offences mentioned in the FIR,
and the contents of the complaint were proved not true; the investigating
officer had submitted proposals on 07.07.2011 to the Sub-Divisional Officer,
Palamaner Division to refer the case as false; subsequently, the Sub-Divisional
Officer, Palamaner had accorded permission on 15.07.2011 for referring the case
as false; his enquires revealed that Sri S. Nagaraja, the then Sub-Inspector of
Police, Panjani Police Station,  who investigated the case, had submitted
proposals  to refer the case as false, after receipt of the referral proceedings
from the Sub-Divisional Officer, Palamaner Division on 15.07.2011; he served the
referred case summons (RCS) notice on the complainant Smt. K.Krishnamma; the  
said RCS was  protested by the complainant in the court of the Judicial
Magistrate of First Class, Punganur on 13.12.2011; on perusal of the protest
petition filed by the complainant, the Court had dismissed the petition on
22.08.2012, vide CFR No.5515 of 2011 of Crime No.66 of 2011 of Panjani Police
Station; Sri S. Nagaraja the then Sub-Inspector of Police, after serving the RCS
notice on the complainant, did not submit the final report in the Court of the
Judicial Magistrate of First Class, Punganur till he was transferred on
16.10.2011 from the Panjani Police Station; he was therefore issued a charge
memo vide proceedings dated 16.01.2013, and departmental proceedings would  
follow; Sri S. Nagaraja, who assumed charge as the Sub-Inspector of Police,
Panjani Police Station on 23.10.2011, served the RCS notice on the complainant
on 26.08.2012 but, however, did not submit the final report in the Court till
27.12.2012; the Sub-Inspector, being a probationer, was not well versed with the
procedures, and had committed inordinate delay in submitting the final report to
the Court;  a charge memo was issued to him on 16.01.2013 followed by
departmental proceedings; the fifth respondent had entrusted the task, of
antecedent verification of the sixth respondent, to Sri A. Surender Reddy,
Inspector of Police, formerly District Special Branch, Chittoor who, in turn,
got it enquired through Sri G. Subramanyam, the then Sub-Inspector of Police,
District Special Branch, Chittoor; and the field enquiry was caused by Sri K.
Rasheed, PC-2442 of Punganur Police Station attached to the Special Branch,
Punganur (who also did not specify about the pendency of FIR 66 of 2011 against
the sixth respondent); based on the enquiry report submitted to him by the three
police officers, the antecedent verification report was submitted by him to the
District Collector; in view of the lapse, in not submitting factual information
about the antecedents of the sixth respondent, Sri A. Surender Reddy, Inspector
of Police, was issued charge memo dated 15.01.2013; G. Subramanyam, the Sub-  
Inspector of Police, was imposed punishment of postponement of increment for one
year without effect on future increments and pension vide proceedings dated
19.01.2013, followed by departmental proceedings; Sri K. Rasheed, PC-2442 of
Punganur Police Station, was suspended from service vide proceedings dated
15.01.2013, and departmental enquiry would follow thereupon; time and again
instructions were issued by him to all the Station House Officers in the
District to strictly follow procedure while conducting investigation into the
cases, more particularly court referred cases; the investigating officers were
instructed that, after completing  the investigation and after obtaining
permission from the competent authority, RCS notices should be served on the
complainants, and final reports should be filed before the competent courts
without any delay; inspite of repeated instructions the Sub-inspector of Police,
Panjani Police Station, committed procedural lapses which were dealt with
sternly by issuing a charge memo; the District Special Branch police personnel,
who were duty bound to provide factual information, had failed to identify the
pending case against the sixth respondent  while causing antecedent verification
for which they were penalized with suspension and charge memos; and necessary
steps would be taken to avoid inordinate delay and procedural lapses in
investigation of the cases.  Along with the additional counter affidavit the
proceedings, whereby action was taken against the officials concerned, are
enclosed.
In his counter affidavit, the sixth respondent would deny his involvement as
accused No.3 in Crime No.66 of 2011 of Panjani Police Station. He would submit
that, after investigating into Crime No.66 of 2011, the Sub-Inspector of Police,
Panjani Police Station had sent a requisition to the Sub-Divisional Officer,
Palamner on 07.07.2011 for according permission to refer the case as false, and
to submit a final report in the Court of the Judicial Magistrate of First Class,
Punganur; as on the date of issuance of circular dated 20.9.2011, by the
Assistant Sessions Judge, Punganur, no cases were pending against him; he never
received any notices either from the Court or from the police officials
intimating his involvement in the criminal case; and mere registration of a
crime against him could not be the basis for holding that he was involved in a
criminal case. He would deny the allegation that his name was recommended by
respondent Nos.3 and 4 to the first respondent, for appointment as an Additional
Public Prosecutor  to the Court of Assistant Sessions Judge, Punganur, without
taking into consideration his antecedents and social status.  He would submit
that the District Judge, Chittoor had forwarded his name taking into
consideration his qualification and eligibility; it is only after considering
the material available had the first respondent appointed him as the Additional
Public Prosecutor for a period of three years vide G.O.Rt. No.330 dated
15.02.2012 which was communicated to him by the second respondent; he took  
charge on 17.02.2012 as the Additional Public Prosecutor, and was conducting
cases; his appointment was made only after following the prescribed procedure;
there is no illegality or irregularity in his appointment; and no offence had
been committed by him as he was not convicted.
STATUTORY PROVISIONS AND EXECUTIVE INSTRUCTIONS - GOVERNING THE MODE AND MANNER                      
OF APPOINTMENT OF PUBLIC PROSECUTORS/ADDITIONAL PUBLIC PROSECUTORS:                    

Before examining the rival submissions made by counsel on either side, it is
useful to refer to the relevant statutory provisions, and the executive
instructions, governing appointment to the posts of Public Prosecutor/Additional
Public Prosecutor.  Section 24 Cr.P.C. governs the manner of appointment to such
posts both in the High Court and in each District of the State.  Section 24(3)
empowers the State Government to appoint a Public Prosecutor for every District,
and also to appoint one or more Additional Public Prosecutors for the District.
Section 24(4) stipulates that the District Magistrate (District Collector)
shall, in consultation with the Sessions Judge (District Judge), prepare a panel
of names of persons who are, in his opinion, fit to be appointed as Public
Prosecutors and Additional Public Prosecutors for the District.  Section 24 (5)
prohibits the State Government from appointing any person as a 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).  Section 24(7) stipulates that 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 sub-section (3) or sub-section (6), only if he
has been in practice as an advocate for not less than seven years.  Sub-section
(9) stipulates that, for the purposes of sub-section (7) and (8), the period
during which a person has been in practice as a pleader, or has rendered 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.
Instruction 2(iv), of the "Andhra Pradesh Law Officers (Appointment and
Conditions of Service) Instructions, 2000" (notified in G.O.Ms. No.187 dated
06.12.2000), defines "Law Officer" to include a Public Prosecutor or Additional
Public Prosecutor or a Special Public Prosecutor.  Instruction 3 relates to
appointment of Law Officers and, under sub-instruction (1) thereof, the
Government shall appoint such number of Law Officers on behalf of the State, to
conduct cases before various courts, as they may consider necessary.
Instruction 5 relates to Appointment of Law Officers in the District Courts and,
under sub-instruction (1) thereof, appointment of Law Officers in all Courts
subordinate to the High Court shall be made on the basis of the recommendations
of the District Collector concerned who shall ascertain the views of the
concerned District and Sessions Judge before making the recommendations.  Under
sub-instruction (2) the District Collector shall prepare a panel of advocates
well in advance before expiry of the term of the incumbents, and send the same
to the Government for consideration.  Sub-Instruction (4) stipulates that, on
receipt of a panel sent by the District Collector under sub-instruction (1), the
Government in the Law Department shall consider the same and appoint one among  
the panel as a Law Officer for a term prescribed under Instruction 8 or call for
a fresh panel.  Sub-Instruction (5) stipulates that the District Collector shall
submit a fresh panel as called for, under sub-instruction (4), in the same
manner for consideration.  Instruction 6 relates to appointment of Public
Prosecutors, Additional Public Prosecutors and Special Public Prosecutors and,
thereunder, Public Prosecutors, Additional Public Prosecutors and Special Public
Prosecutors shall be appointed as per the provisions of Section 24 of the Code
of Criminal Procedure, 1973.  Instruction 7 prescribes the guidelines for
selection of Law Officers and, thereunder, the selection of candidates for
appointment as Law Officers shall, as far as possible, be based primarily on
merit and suitability; in making the selection, every endeavour should be made
to provide equitable representation to members of the scheduled castes, the
scheduled tribes and the backward classes in accordance with the ratio of 15%,
6% and 25% respectively; women shall be accorded reasonable representation in
all categories; and when merit and suitability are equal, preference may be
given to members of scheduled castes, scheduled tribes, backward classes and
women.
JUDICIAL REVIEW OF THE EXERCISE OF DISCRETION IN THE APPOINTMENT OF PUBLIC                
PROSECUTORS/ ADDITIONAL PUBLIC PROSECUTORS - ITS SCOPE:              
In preparing a panel of advocates the District Collector, and in appointing the
Public Prosecutor/Additional Public Prosecutor the Government, exercise the
discretion conferred on them under sub-sections (4) and (3) of Section 24 Cr.P.C
respectively.  In considering the validity of the challenge to the appointment
of the 6th respondent as an Additional Public Prosecutor it is necessary, at the
outset, to examine the scope of Judicial review of appointment to such statutory
posts.
Judicial review is concerned with whether the incumbent possesses the
qualifications prescribed for the appointment and the manner in which the
appointment came to be made or whether the procedure adopted was fair, just and
reasonable. While the Government is not accountable to the Courts for the choice
made, it is accountable in respect of the legality of the decisions impugned
under the judicial review jurisdiction.  (Centre for PIL v. Union of India1).
Appointment of a Public Prosecutor is an executive or administrative act
exercised at the discretion of the Government.  No absolute discretion is vested
in the Government, as such appointments should be made only in accordance with
the law; and the prescribed procedure, preceding the appointment, should be
strictly adhered to.  The discretion conferred on the Government in the matter
is circumscribed by the Section, and it is within the four corners of the
Section that the discretion must be exercised.  (A. Mohambaram v. M.A.
Jayavelu2).  In a system governed by the rule of law, discretion, when conferred
upon the Executive, must be confined within clearly defined limits. Decisions
should be made by the application of known principles and rules. If a decision
is taken without any principle or without any rule it is unpredictable and such
a decision is the antithesis of a decision taken in accordance with the rule of
law.  (A. Mohambaram2). There is no such thing as absolute or untrammelled
discretion, the nursery of despotic power, in a democracy based on the rule of
law.  Law has reached its finest moments when it has freed man from the
unlimited discretion of some ruler. Where discretion is absolute man has always
suffered.  (A. Mohambaram2; United States v. M. Wunderlich3).  Exercise of
discretionary administrative power will be set aside if there is manifest error
in the exercise of such power or the exercise of the power is manifestly
arbitrary. The authority must genuinely address itself to the matter before it.
In the purported exercise of its discretion, it must act in good faith, must
have regard to all relevant considerations, must not be influenced by irrelevant
considerations, must not seek to promote purposes alien to the letter or to the
spirit of the legislation that gives it power to act, and must not act
arbitrarily or capriciously. (Indian Railway Construction Co. Ltd. v. Ajay
Kumar4;  State of U.P. v. Renusagar Power Co5; Professor de Smith in his
classical work Judicial Review of Administrative Action, 4th Edn., at pp. 285-
87).  If, in the discharge of a public duty, the authority exercising his
discretion takes into account matters which the Courts consider improper for the
guidance of his discretion, then the authority has not exercised that discretion
in the eye of law. When considerations, extraneous to the suitability of a
person for appointment, are taken into account in making an appointment, there
is an abuse of discretionary power, and the exercise of power exceeds the bounds
of authority. The other aspirants for the office would have been left out of
consideration on totally irrelevant grounds.  While the fitness of a person to
an office may be solely within the discretion of the appointing authority, the
discretion must be exercised bona fide. (A. Mohambaram2; Maxwell on the
Interpretation of Statutes, llth Edition, page 118).   While Courts will not
interfere with the choice of an individual with reference to an appointment made
in the due exercise of its discretion by the Government, without shutting out of
consideration the claims of others for the post, Courts will certainly stand
guard, against flagrant abuse of powers on the simple and sound principle that
the Constitution 'cannot have intended powers to be abused beyond what might be
called the inevitable area where opinions may legitimately differ'. (A.
Mohambaram2).  
ROLE OF THE PUBLIC PROSECUTOR IN THE CRIMINAL JUSTICE SYSTEM:              

The Criminal law enforcement system investigates crimes and prosecutes
offenders.  It must also protect valued rights and freedoms, and convict only
the guilty. The prosecutor must recognize these different and competing
interests. He should strike a fair balance between the competing interests of
convicting the guilty, protecting citizens' rights and freedoms and protecting
the public from criminals. Prosecutors should ensure that prosecutions are
conducted in a diligent, competent and fair manner.  The importance of the
office of the Public Prosecutor cannot be over-emphasized.   The Public
Prosecutor must be a person of high merit, fair and objective, because upon him
depends to a large extent the administration of criminal justice.  The office of
the Public Prosecutor is a public office and the incumbent has to discharge
statutory duties.  The person appointed as Public Prosecutor must, therefore, be
one who is not only able and efficient, but also enjoys a reputation and
prestige which satisfy his appointment as a Public Prosecutor.  (Reyasat Ali
Khan v. State of Bihar6).  The duty of the prosecutor is to assist the Court in
reaching a proper conclusion in regard to the case which is brought before it
for trial.  (Darya Singh v. State of Punjab7).  The prosecutor has to be fair in
the presentation of the prosecution case. He must not suppress or keep back from
the court evidence relevant to the determination of the guilt or innocence of
the accused. He must present the complete picture, and not a one sided picture.
He must not be partial to the prosecution or to the accused. He has to be fair
to both sides in the presentation of the case.  (Prabhu Dayal Gupta v. State8).

INSTITUTIONAL INTEGRITY OF THE OFFICE OF PUBLIC PROSECUTOR:            

Is a person, against whom a criminal complaint had been lodged and in which a
final report under Section 173 Cr.P.C. had not been filed by the Investigation
agency before the competent Court when he was considered for appointment as an
Additional Public Prosecutor, "fit" for appointment to the said post?   This is
an issue which requires serious thought, as the prosecution of an offender is
the duty of the executive which is arrived at through the institution of the
Public Prosecutor.  The Public Prosecutor, who prosecutes the case on behalf of
the State, is an officer of the Court and is responsible to it.  (Sheonandan
Paswan v. State of Bihar9).  The institutional integrity of the institution of
the Public Prosecutor should be kept in mind while recommending the name of the
candidate. Appointment to the post of a Public Prosecutor must satisfy not only
the eligibility criteria of the candidate, but also the decision-making process
of the recommendation.  The decision to recommend must be an informed decision
keeping in mind the fact that the Public Prosecutor, as an institution, has to
perform an important function in criminal justice administration. If a statutory
authority, like the District Collector or the Sessions Judge, eschew relevant
material having nexus to the object and purpose of Section 24 Cr.P.C, or take
into account irrelevant circumstances, then their decision/recommendation would
stand vitiated on the ground of arbitrariness. The authorities must take into
consideration the question of institutional competence into account. If the
selection would adversely affect institutional competence and functioning, then
it is their duty not to appoint such a candidate.  Institutional integrity
should be the primary consideration while submitting proposals for appointment
to the post of a Public Prosecutor.  While exercising the powers conferred by
the Section, the competent authority should consider what is good for the
institution, and not what is good for the candidate. When institutional
integrity is in question, the touchstone should be "public interest".  Personal
integrity is relevant, and has a co-relationship with institutional integrity.
If a duty is cast under the Section to recommend the name of the selected
candidates, the integrity of that decision-making process must ensure that the
powers are exercised for the purposes, and in the manner, envisaged by the said
Section, otherwise such recommendation will have no existence in the eye of the
law. (Centre FOR PIL1).
MEANING OF THE EXPRESSION "FIT TO BE APPOINTED"          
The expression "fit to be appointed", as used in Section 24(4) Cr.P.C, is
distinct from, and is in addition to, the eligibility criterion stipulated in
sub-section (7) of Section 24.  While the eligibility criterion stipulated in
Section 24(7) & (9), for being appointed as an Additional Public Prosecutor, is
practice as an advocate for not less than seven years, (including service as a
Public Prosecutor or Additional Public Prosecutor or Assistant Public
Prosecutor), "fitness" for appointment to the said post is more than mere
"eligibility" for, if fitness were to be construed as equivalent to eligibility,
then the word "fit" used in sub-section (4) would be inapposite surplussage, as
the eligibility criterion for appointment is stipulated in Section 24(7) and (9)
Cr.P.C.
What does fitness mean?  The word "fit" means befetting or meeting adequate
standards.  The New Oxford dictionary of English (Indian Edition) explains the
word "fit" as of a person having the requisite skills to undertake something
competently.  The essential requirement of fitness, under Section 24(4) Cr.P.C,
is that the person should be suitable for doing the particular work, which is
different from his eligibility. (Mrs. Neelima Sadanand Vartak v. State of
Maharashtra10). The District Magistrate is required to form an opinion that a
person is fit to be appointed as an Additional Public Prosecutor before he
prepares a panel of names of persons to be appointed to the said post.  (Reyasat
Ali Khan6).
FORMATION OF OPINION BY THE DISTRICT MAGISTRATE, REGARDING "FITNESS" OF PERSONS                  
TO BE EMPANELLED, MUST BE BASED ON RELEVANT MATERIAL:              

The scheme of Section 24 Cr.P.C. ensures the selection of an able Public
Prosecutor by providing for a panel being prepared by the District Magistrate in
consultation with the Sessions Judge, and limiting the choice of the State
Government to Advocates whose names appear in the panel.  In making his
recommendation, in consultation with the District and Sessions Judge, the
District Magistrate is expected to ensure that the names recommended by him are
of persons who command respect and enjoy a reputation for their ability and
industry.   A Public Prosecutor or an Additional Public Prosecutor for a
district is appointed on the recommendation of the District Magistrate, who must
submit his proposal in consultation with the Sessions Judge.  (Shankar Sinha vs
State Of Bihar11).  The post of Public Prosecutor/Additional Public Prosecutor
is a statutory post, and they perform statutory functions.   An informed
decision must be taken by the authorities on the basis of a consideration of
relevant material keeping in mind the purpose, object and policy of the Section.
(Centre for PIL1).
The requirements of Section 24(4) Cr.P.C.  are (1) the District Magistrate
should consult the District Judge in preparing a panel of Advocates to be
considered for appointment as a Public Prosecutor or an Additional Public
Prosecutor; and (2) the panel should contain the names of only those persons who
are, in the opinion of the District Magistrate, fit to be appointed as Public
Prosecutors or Additional Public Prosecutors of the District.
The District Magistrate is mandated to form an opinion that the persons, being
included in the panel to be forwarded to the Government, are "fit" to be
appointed as Public Prosecutors/Additional Public Prosecutors.  The words "in
the opinion of" do not always lead to the construction that the process of
entertaining "the opinion" is an altogether subjective process not lending
itself even to a limited scrutiny by the Court that such "opinion" was not
formed on relevant facts or within the limits or the restraints of the statute.
(Barium Chemicals Ltd. v. Company Law Board12).  Even if an order, passed in
exercise of the power under a statute, is passed in good faith, and with the
best of intentions to further the purpose of the legislation which confers the
power, since the Authority has to act in accordance with and within the limits
of that legislation, its order can also be challenged if it is beyond those
limits or is passed on grounds extraneous to the legislation or if there are no
grounds at all for passing it or if the grounds are such that no one can
reasonably arrive at the opinion or satisfaction requisite under the
legislation. In any one of these situations it can well be said that the
authority did not honestly form its opinion or that, in forming it, it did not
apply its mind to the relevant facts. (Barium Chemicals Ltd.12).  In situations
were administrative authorities have to form certain opinion before taking the
action they are empowered to take, the formation of opinion is a subjective
matter.  Nevertheless, that opinion has to be based upon some relevant material
in order to pass the test which Courts impose. That test basically is: Was the
authority concerned acting within the scope of its powers or in the sphere where
its opinion and discretion must be permitted to have full play?   There might,
however, be cases in which the power is exercised in such an obviously arbitrary
or perverse fashion, without regard to the actual and undeniable facts, or, in
other words, so unreasonably as to leave no doubt whatsoever in the mind of a
Court that there has been an excess of power. There may also be cases where the
mind of the authority concerned has not been applied at all, due to
misunderstanding of the law or some other reason, to what was legally imperative
for it to consider. (Narayan Govind Gavate v. State of Maharashtra13).  In
arriving at a decision on "reasonableness" the court must find out if the
administrator has left out relevant factors or has taken into account irrelevant
factors. The decision of the administrator must be within the four corners of
the law, and not one which no sensible person could have reasonably arrived at,
having regard to the above principles, and must be bona fide. The decision can
be one of many choices open to the authority. It is for that authority to decide
upon the choice, and not for the Court to substitute its view.  To characterize
a decision of the administrator as "irrational" the Court has to hold, on
material, that it is a decision "so outrageous" as to be in total defiance of
logic or moral standards.  (Ajay Kumar4).
In the formation of opinion regard must be had to the factors enumerated in the
Section together with all other factors relevant for exercise of that power.
Formation of opinion must be based on objective considerations. There must exist
circumstances which, in the opinion of the Authority, suggest what has been set
out in the Section. Existence of the circumstances mentioned in the Section is a
condition precedent for formation of the required opinion and, if the existence
of those conditions is challenged, Courts are entitled to examine whether those
circumstances existed when the order was made. If it is shown that the
circumstances did not exist, or that they were such that it is impossible for
any one to form an opinion therefrom, the opinion can be challenged on the
ground of non-application of mind or perversity or on the ground that it was
formed on collateral grounds and was beyond the scope of the section. (A.P.
Bankers & Pawn Brokers' Assn. v. Municipal Corpn. of Hyderabad14; India Cement
Ltd. v. Union of India15), Rajesh Kumar v. Dy. CIT16; Rohtas Industries Ltd v.
S.D. Agarwal17; and  M. Govinda Rao vs A.P. State Wakf Board18).
The 'opinion', referred to in Section 24(4) Cr.P.C, must be free from bias or
pressure or influence.  The panel prepared, on the basis of the opinion of the
authorities, must be considered statutory in nature.  No deviation from the
mandatory provision of Section 24 Cr.P.C. can be permitted.  (Mohan Jee Upadhyay
v. State of Bihar19; Reyasat Ali Khan6).  Although power is vested in the
District Magistrate, in subjective terms, judicial review is still permissible.
(Harpal Singh Chauhan v State of U.P20).  While the formation of opinion is,
undoubtedly, that of the District Collector, and his satisfaction that a person
is fit to be appointed is no doubt subjective, it is only if the formation of
opinion is preceded by consideration of relevant material, and eschewing
irrelevant material, can such an opinion be said to accord with the law.  In the
performance of his statutory duty, the District Magistrate must record his
opinion regarding the fitness of the person recommended. In doing so, apart from
consultation with the Sessions Judge, he is not to be influenced by extraneous
considerations.  Since the selection by the State Government is confined to the
panel of names proposed by the District Magistrate, extraneous considerations,
including political, are out of place. It is the independent opinion of the
District Collector which must form the basis for his recommendation, and not the
opinion of any other person, or an opinion procured from him under pressure or
influence.  (Reyasast Ali Khan6).
"FITNESS" TO BE DETERMINED BY THE DISTRICT MAGISTRATE ONLY IN CONSULTATION WITH                  
THE DISTRICT & SESSIONS JUDGE:      
As Sub-section (4) and sub-section (5) of Section 24 Cr.P.C. speak about
preparation of a panel, out of which appointments against the posts of
Prosecutor or Additional Public Prosecutor should be made, the Sessions Judge
and the District Magistrate are required to consult each other; discuss the
names of persons fit to be included in the panel; and include only such names in
the panel. The expression "panel of names of persons" does not mean that some
names are to be suggested by the Sessions Judge, and some comments are to be  
made in respect of those names by the District Magistrate, without proper
consultation and discussion over such names. The statutory mandate ought to be
complied with both in letter and spirit by the District Magistrate and the
Sessions Judge.  The quality of the Counsel's work has to be judged and assessed
by the District and Sessions Judge. The District Magistrate is required to
consider the suitability of such persons from the administrative point of view.
(Harpal Singh Chauhan20).  There must be effective and real consultation between
the Sessions Judge and the District Magistrate and only then should a panel of
names of persons be prepared.  (Mrs. Neelima Sadanand Vartak10).
Consultation with the Sessions Judge, under Section 24(4), is on the "fitness"
of a person to be appointed as a Public Prosecutor.  The Sessions Judge is
required not to pick and choose those who satisfy the eligibility criteria of
seven years practice as an advocate, but to ensure that the names of only those
eligible advocates, who are "fit" to be appointed as Public
Prosecutors/Additional Public Prosecutors, are included in the panel to be
prepared after completion of the consultative process between him and the
District Magistrate.   The New Oxford dictionary of English (Indian Edition)
defines "panel" to mean a small group of people brought together for a purpose.
The exercise of preparing a "panel" involves short-listing the most meritorious
candidates.  (Mrs. Neelima Sadanand Vartak10).  The Sessions Judge is required
to identify the most meritorious candidates, from among those eligible, to be
included in the panel for appointment to the post of Public
Prosecutors/Additional Public Prosecutors. Even while ensuring the rule of
reservation, wherever applicable, the Sessions Judge should identify the most
meritorious advocates in each of the reserved categories. The factors which the
District Judge may take into consideration, before satisfying himself that an
eligible advocate is "fit" to be empanelled for being considered for appointment
as a Public Prosecutor/Additional Public Prosecutor, would include the
performance of the advocate at the bar, the volume and quality of his practice,
the manner in which he conducts himself in Court, his integrity, a blemishless
background, fairness of approach to cases presented by him before the Court etc.
The aforesaid factors are merely illustrative and the Sessions Judge can also
take into consideration any other factor relevant for determining the "fitness"
of an eligible advocate to be appointed as the Additional Public Prosecutor.
Extraneous factors, such as patronage - political or otherwise, holding elected
office such as the President, Secretary or executive member of the Bar/Advocates
Association etc are wholly irrelevant in determining "fitness", and should be
eschewed.
"FITNESS" OF THE EMPANNELED ADVOCATES MUST ALSO BE EXAMINED BY THE GOVERNMENT                        
BEFORE APPOINTING ONE OF THEM AS THE ADDITIONAL PUBLIC PROSECUTOR:                  
The power of the State Government, to appoint an Additional Public Prosecutor in
a District, circumscribed by Section 24(5) Cr.P.C., is that no person can be
appointed to the said post unless his name appears in the panel of names
prepared by the District Magistrate under Sub-section (4).  It is only from the
panel of names recommended by the District Magistrate, can the State Government
appoint one of them to the post of Additional Public Prosecutor. Where it finds
that any, or all, the empanelled advocates are not "fit" to be appointed as
Public Prosecutor/Additional Public Prosecutor, it is open to the Government to
either select one of the "fit" empanelled candidates or return the panel and
call for a panel afresh. While the opinion of the Sessions Judge and the
District Collector have great weight, their opinion is not conclusive. In those
rare cases where the Government disagrees with the recommendation of the
District Collector, decides to return the panel, and call for a panel afresh, it
must record its reasons for doing so.



EXECUTIVE INSTRUCTIONS CAN ONLY SUPPLEMENT AND NOT SUPPLANT THE PROVISIONS OF A                      
STATUTE:

The contention that pendency of a criminal cases is not a bar for appointment to
the post of Additional Public Prosecutor, under G.O.Ms. No.187 dated 6.12.2000,
is not tenable, as the said G.O. requires appointment, to the post of Public
Prosecutors/Additional Public Prosecutors, to be made primarily on the basis of
merit and suitability. "Pendency of criminal cases" would, undoubtedly, be one
of the relevant factors to be taken into consideration while adjudging the
suitability of the candidate for appointment to the said post. It does not stand
to reason that a person with a criminal back ground should be appointed to a
post which would require him to prosecute criminals on behalf of the State.
Such a person can hardly be said to be suitable for appointment as a Public
Prosecutor. Even otherwise the instructions, in G.O.Ms. No.187 dated 6.12.2000,
do not have statutory force and can, at best, supplement the provisions of
Section 24 Cr.P.C.  Executive instructions can only supplement and not supplant
the law, (Senior Supdt. of Post Offices v. Izhar Hussain21; St. Johns Teachers
Training Institute v. Regional Director, NCTE22), and cannot be so framed or
utilised as to override the provisions of law as it would, then, destroy the
very basis of the rule of law and strike at the very root of orderly
administration of law. (Mannalal Jain v. State of Assam23).  If, however, the
rules are silent on any particular point, the  Government can fill up the gaps
and supplement the rules and issue instructions not inconsistent with the rules
already framed. (Sant Ram v. State of Rajasthan24; M/s.Vijaya Vasava Motors v.
The Assistant Commissioner (LTU), Eluru Division, Eluru25).
ANTECEDENTS OF THE ADVOCATES IS A RELEVANT FACTOR TO BE TAKEN INTO CONSIDERATION                      
WHILE PREPARING THE PANEL - EXERCISE OF ANTECEDENT VERIFICATION MUST BE CARRIED                    
OUT WITH DUE CARE AND CAUTION.      
The elaborate procedure prescribed, under Section 24 Cr.P.C, is to ensure that
no "unfit" person is appointed as an Additional Public Prosecutor.  The District
Magistrate must form an opinion that all the five advocates, included by him in
the panel forwarded to the State Government, are "fit" to be appointed to the
said post. Since Section 24 (4) requires the District Magistrate to form the
opinion, and not the Sessions Judge, the "fitness" of even those advocates, who
have been found "fit" by the Sessions Judge, must be examined by the District
Collector.  The express words of Section 24(4), and its insistence upon the
District Magistrate acting in consultation with the Sessions Judge, clearly
spells out the policy of the law to select the best person available for
appointment as a Public Prosecutor.  The appointment is to be made on
consideration of merit; and the fitness of a person, for appointment as a Public
Prosecutor, must be understood accordingly. The choice of the Government is
limited to the names included in the panel, and the names included in the panel
must be of meritorious persons who, in the opinion of the District Magistrate,
are fit for appointment as a Public Prosecutor. (Reyasat Ali Khan6).  The
District Magistrate should ascertain the antecedents of those advocates to be
included in the panel; whether they are involved in criminal cases etc. The
opinion formed by him regarding the "fitness" of the eligible Advocates,
proposed to be included in the panel, would also be based on the antecedent
verification report furnished to him by the Superintendent of Police.  The word
"antecedent" means preceding or prior.  It also means a circumstance, event,
history, characteristics etc., of one's earlier life. The antecedents of an
advocate is a factor relevant to the formation of the opinion whether or not the
said advocate is "fit" to be appointed as an Additional Public Prosecutor.  A
thorough verification of the antecedents of the panelists is, therefore,
essential. Verification of the antecedents of the advocates, before inclusion of
their names in the panel for appointment as a Public Prosecutor/Additional
Public Prosecutor, is an important and a crucial part of a selection process.
It must be undertaken with due care and caution, and not treated as an empty
formality or a mere ritual.
Inquiries in this regard must be conducted without favour, prejudice or malice.
It is disconcerting that, in the present case, the exercise of antecedent
verification of an advocate, to be included in the panel for appointment as an
Additional Public Prosecutor, has been carried out in such a slipshod, tardy and
perfunctory manner. In the proceedings of the fifth respondent (Superintendent
of Police, Chittoor District) dated 19.01.2013, reference is made to the fact
that it is mandatory, in the Special Branch Manual, that the services of police
personnel, not below the cadre of Head Constable, should be utilized for field
verification, antecedents of foreigners, job verification etc. In causing
verification of the antecedents of the sixth respondent, only a police constable
was deputed contrary to the aforesaid instructions in the Special Branch Manual.
The antecedent verification report, submitted by the Superintendent of Police to
the District Collector, makes no reference to Crime No.66 of 2011 having been
registered in the Panjani Police Station on 07.06.2011 on the complaint dated
10.11.2010, filed by the complainant before the Judicial Magistrate of First
Class, Punganur, being referred for investigation under Section 156(3) Cr.P.C.
on 2.6.2011.   The pendency of Crime No.66 of 2011 registered, amongst others,
against the 6th respondent, ought to have been brought to the notice of the
District Magistrate by the Superintendent of Police, Chittoor as this was a
relevant factor which the District Magistrate was required to take into
consideration before formation of his opinion whether or not the 6th respondent
was "fit" to be empanelled for the post of Additional Public Prosecutor.
A CRIMINAL COMPLAINT REGISTERED UNDER SECTION 154(1) Cr.P.C, IS PENDING TILL THE              
MAGISTRATE, AFTER CONSIDERING THE FINAL REPORT FILED UNDER SECTION 173(2), AND                
AFTER GIVING THE COMPLAINANT AN OPPORTUNITY OF BEING HEARD, PASSES AN ORDER                    
CLOSING IT:

Both the District Collector and the Superintendent of Police, Chittoor state
that investigation in Crime No.66 of 2011, prima facie, disclosed that the
incident occurred on 24.10.2010; the complaint in Cr. No.66 of 2011 was similar
to the complaint lodged by the complainant's daughter which was registered
earlier as Cr. No.99 of 2010; the complaint in Crime No.99 of 2010, for offences
under Sections 376 read with Sections 511 and 355 IPC, was referred as false
vide proceedings of the Sub-Divisional Police Officer, Palamaner dated
14.12.2010; since the said complaint was referred as false, the present
complainant had filed the second complaint, before the Judicial First Class
Magistrate at Punganur, which was registered as Crime No.66 of 2011; the
complaint in Crime No.66 of 1999 was also referred as false vide proceedings of
the Sub-Divisional Police Officer, Palamaner dated 15.07.2011; notices were
issued, and the complainant was intimated that the complaint was false by
service of a notice on 26.08.2012.
It is evident from the  records placed before this Court that, much before
14.12.2010 (when the Sub-Divisional Police Officer, Palamaner is said to have
referred the complaint in Cr. No.99 of 2010 as false, though a copy thereof has
not been made part of the record placed before this Court), the present
complaint in CFR No.5470 of 2010 (which was later registered as Cr. No.66 of
2011) was filed before the Court of the Judicial Magistrate of I Class, Punganur
on 10.11.2010 itself which, on being referred by the Magistrate under Section
156(3) Cr.P.C, was registered on 7.6.2011 as Cr.No.66 of 2011.  The respondents
contention that the complaint in F.I.R. 66 of 2011 was filed only after the
earlier complaint in Crime No.99 of 2010 was referred by the Sub-Divisional
Police Officer in his report dated 14.12.2010 as false, is therefore, not
tenable.
The petitioner filed a copy application, in the Court of the Judicial Magistrate
of First Class, Punganur in Crime No.66 of 2011 on 21.12.2012, requesting that a
certified copy of the final report dated 15.7.2011; the statements recorded in
Crime No.66 of 2011; and the referred notice, in Crime No.66 of 2011 of Panjani
Police Station, be furnished to enable him to file them before this Court in the
present Writ Petition.  The Learned Magistrate, by his endorsement dated
21.12.2012, returned the memo filed by the petitioner observing that the final
report, in Crime No.66 of 2011, had not been filed by the Station House Officer,
Panjani Police Station till date; and the referred notices in Crime No.66 of
2011 of Panjani Police Station had also not been filed in Court till date.  It
is evident, therefore, that even till 21.12.2012, (i.e., even after the counter
affidavits were filed by the respondents in this Writ Petition), the final
report under Section 173(2), in relation to Crime No.66 of 2011, was not filed
in the Court.  It is admitted in the additional counter affidavit, filed by the
Superintendent of Police dated 21.1.2013, that the final report in Cr. No.66 of
2011 was submitted in Court only on 27.12.2012.  The protest petition, (a copy
of which has been filed along with the additional counter affidavit of the
Superintendent of Police), does not bear any date and, in any event, could have
been filed only after a copy of the final report was served on the complainant
on 26.8.2012. While the District Collector and the Superintendent of Police,
Chittoor would admit that the notice relating to the final report was served on
the petitioner on 26.8.2012, a copy of the order of the Judicial Magistrate of
First Class, Punganur in CFR. No.5515 of 2011 in Crime No.66 of 2011 dated
22.08.2012 of Panjani Police Station (a copy of which is enclosed to additional
counter affidavit of the Superintendent of Police, Chittoor) records that the
Judicial Magistrate of I Class had dismissed the said complaint on 22.08.2012
since the advocate of the complainant had informed the Court that the
complainant was not at all approaching him; and the complaint may be dismissed.
Dismissal of the complaint in F.I.R. 66 of 2011 on 22.8.2012 was even before the
notice of the final report was, admittedly, served on the complainant on
26.8.2012.  It defies reason how the Judicial Magistrate of First Class,
Punganur could have dismissed the complaint on 22.8.2011, much before a final
report was filed in his Court on 27.12.2012.  It does appear as if no notice was
issued by the Learned Magistrate to the complainant before accepting the final
report, and deciding not to take cognizance and drop the proceedings. This
omission may well vitiate the order of the Learned Magistrate dismissing the
complaint.  (Union Public Service Commission vs S. Papaiah26). It would,
however, be wholly inappropriate for this Court to delve on this aspect any
further as the remedy, which the complainant may have on her complaint being
dismissed by the Judicial Magistrate of First Class, is by way of a revision
under Section 397 Cr.P.C.
It is not difficult to perceive the behind the scenes efforts made by the
respondents to give a quiet burial to the complaint, lest it adversely affect
the appointment of the 6th respondent as the Additional Public Prosecutor and
respondents 3 and 5 be faulted, on this score, by this Court.  Whether or not
the 6th respondent was aware, of the complaint being registered against him in
Crime No.66 of 2011, is of no consequence as no advocate can claim, as of right,
that his name should be included in the panel of advocates prepared for
appointment to the post of Additional Public Prosecutor.  It is evident that the
final report in Crime No.66 of 2011, (a copy of which was filed before the
Learned Magistrate only on 27.12.2012), was pending when the Superintendent of
Police submitted his antecedent verification report to the District Collector on
10.11.2011; when the District Collector forwarded the panel of Advocates to the
Government by his letter dated 25.11.2011; and when the Government appointed the
6th respondent as the Additional Public Prosecutor by G.O.Ms. No.330 dated
15.2.2012.
In their respective counter affidavits both the District Collector and the
Superintendent of Police, Chittoor would submit that mere allegations in an FIR
cannot be termed as "involvement", unless the investigation proves the
involvement of the sixth respondent,  and is further subjected to trial by the
Competent Court; the criminal case registered against the sixth respondent was
referred as false; mere registration of the case against any person, much less
the sixth respondent, cannot be taken as adverse; and no credence can be given
to the allegations made against the sixth respondent in the complaint.
The justification put forth both by the District Collector and Superintendent of
Police, for the casual and perfunctory exercise of antecedent verification, is,
to say the least, irresponsible. While registration of the FIR does not mean
that the accused referred to therein are guilty of the charge, as their guilt or
otherwise would be established only after completion of investigation, and the
consequent trial, as the case may be, it is nonetheless a relevant factor in
determining the "fitness" of an advocate for inclusion in the panel to be
forwarded to the Government for appointment to the post of Public
Prosecutor/Additional Public Prosecutor.
In this context it is necessary to bear in mind that, even after a final report
is filed by the Police officials under Section 173(2) Cr.P.C, there is no
obligation on the Magistrate to accept the said report if he does not agree with
the opinion formed by the police. If he still suspects that an offence has been
committed, he is entitled, notwithstanding the opinion of the police, to take
cognizance under Section 190(1)(c) Cr.P.C. That provision is intended to secure
that offences may not go unpunished and justice may be invoked even where
persons individually aggrieved are unwilling or unable to prosecute or the
police, either wantonly or through bonafide error, fail to submit a report
setting out the facts constituting the offence. (Abhinandan Jha & Ors vs Dinesh
Mishra27). When a report forwarded by the police to the Magistrate, under
Section 173(2)(i) Cr.P.C, is placed before him several situations arise. The
report may state that, according to the police, no offence appears to have been
committed. When such a report is placed before the Magistrate he has the option
of adopting one of the three courses open i.e., (1) he may accept the report and
drop the proceeding; or (2) he may disagree with the report and take the view
that there is sufficient ground for further proceeding, take cognizance of the
offence and issue process; or (3) he may direct further investigation to be made
by the police.  (Gangadhar Janardan Mhatre vs State Of Maharashtra28).
Even in cases where the Magistrate decides that sufficient grounds do not
subsist for proceeding further, and drops the proceeding, the informant would
certainly be prejudiced as the First Information Report lodged becomes wholly
ineffective.  Where the Magistrate decides not to take cognizance, and to drop
the proceeding in the FIR, notice to the informant and grant of opportunity of
being heard in the matter becomes mandatory. (Gangadhar Janardan Mhatre28).   In
cases where the Magistrate, to whom a report is forwarded under Sub-section
(2)(i) of Section 173 Cr.P.C., decides not to take cognizance of the offence and
to drop the proceeding, the Magistrate must give notice to the informant and
provide him an opportunity of being heard at the time of consideration of the
report.  (Gangadhar Janardan Mhatre28).  The issuance of a notice by the
Magistrate to the informant, at the time of consideration of the final report,
is a "must". (S. Papaiah26; Bhagwant Singh vs. Commissioner of Police29).
Protesting early in course of the hearing to which the informant is entitled to,
he can legitimately place his complaint before the Magistrate and the
Magistrate, after hearing him, may decide how to proceed in the matter - (1)
whether to reject the police opinion and take cognizance on the basis of the
materials collected by the police in the course of investigation; (2) whether to
order reinvestigation; and (3) whether to proceed on the basis of the complaint
of the informant.  The informant is entitled to a notice and hearing at the time
of taking cognizance or accepting the police report, as the case may be. If some
evidence has not been shown in the report of the police, which evidence will go
a long way to establish the guilt of the alleged offenders, it shall be open to
the informant to produce the same before the Magistrate. The Magistrate, who
shall hear the informant, should apply his mind to the allegations made by him,
(Mohd. Faizuddin vs G. Ramakrishna Reddy30), and pass a reasoned order for a
revision lies, under Section 397 Cr.P.C, against his order closing the case.
Until a final report under Section 173(2) Cr.P.C. is filed, the Magistrates
gives the complainant an opportunity of being heard, applies his mind to the
objections raised by the complainant to the Section 173(2) Cr.P.C. report, and
thereafter closes the matter, the criminal case must be held to be pending, and
such pendency should be reflected in the antecedent verification report.  In the
present case, the antecedent verification report submitted by the Superintendent
of Police to the District Collector makes no mention of any such pendency.  It
is also evident that the authorities have failed to consider relevant material,
(pendency of a criminal complaint registered against the 6th respondent),
keeping in mind the purpose and policy of Section 24 Cr.P.C.  (Ajay Kumar4;
CENTRE FOR PIL1; N. Kannadasan v. Ajoy Kishore31; State of A.P. v. Nalla Raja
Reddy32).
It is not as if the complaint was deliberately lodged or registered, after the
petitioner's name was recommended for inclusion in the panel, with a view to
disable his candidature from being considered.  Even before the exercise of
preparation of a panel of Advocates, for appointment as an Additional Public
Prosecutor commenced on a letter being addressed by the District Collector to
the District Judge on 07.09.2011, the complaint in Crime No.66 of 2011 was filed
against the sixth respondent before the Court of the Judicial Magistrate of
First Class on 10.11.2010 itself, more than ten months prior thereto.  The
Superintendent of Police, Chittoor cannot absolve himself of all blame for the
perfunctory exercise of antecedent verification, and shift it on a lowly police
constable.
While I was initially inclined to direct the 1st respondent to consider
initiating disciplinary action against the Superintendent of Police, Chittoor,
and his subordinates, for having failed to refer to the pendency of FIR No.66 of
2011 in the antecedent verification report of the sixth respondent, I am
refraining from doing so as the Superintendent of Police has, since, initiated
disciplinary action against all those involved in the process of antecedent
verification.  Suffice it to admonish the Superintendent of Police, Chittoor
(5th respondent), and he be warned to exercise due care and caution in causing
antecedent verification in future, more particularly in relation to appointment
to important posts such as the Public Prosecutor/Additional Public Prosecutor
who represent the interests of the general public in the criminal justice
system.

ELIGIBILITY OF THE PETITIONER IS IMMATERIAL AS IT IS THE APOINTMENT OF THE SIXTH            
RESPONDENT AS ADDITIONAL PUBLIC PROSECUTOR WHICH IS IN ISSUE:              

The sixth respondent would, in turn, allege that the petitioner was working as a
reporter in a daily newspaper, which amounted to a professional misconduct; he
was suspended about three years back, for his misbehaviour, from the Bar
Association, Punganur; he used to blackmail police officials; and he was filing
complaints taking advantage that he was a press reporter.  Even if it were to be
presumed that these allegations have some basis, it cannot be lost sight of that
the eligibility or otherwise of the petitioner, also an advocate, is not in
issue in these writ proceedings as his name has not even been included in the
panel of advocates prepared for being considered for appointment as an
Additional Public Prosecutor.  If, as contended by the sixth respondent, the
petitioner is not suitable, he can always avail his legal remedies in case the
petitioner is considered for such appointment in future.  Even if the petitioner
is not suitable that, by itself, does not legitimize the appointment of the
sixth respondent as an Additional Public Prosecutor.  Though the petitioner
claims that he should have been considered for appointment, it bears no
repetition that no one can claim, as of right, that they should be appointed
against the existing vacancies, though they can make a grievance that either
they have not received fair treatment from the appointing authority or that the
procedure prescribed under Section 24 Cr.P.C. has not been followed. While
exercising the power of judicial review in respect of appointments of Public
Prosecutors, the Court can examine whether there was any infirmity in the
"decision making process". Needless to state that, while doing so, the Court
would not substitute its own judgment for the decision taken in respect of
selection of persons for those posts. ((Harpal Singh Chauhan20).  All that this
is being done, on the process of selection being faulted, is to set aside the
appointment of the sixth respondent as the Additional Public Prosecutor.  The
eligibility or otherwise of the petitioner or his "fitness" to be appointed as
an Additional Public Prosecutor is wholly irrelevant to these writ proceedings
as his name was not even included in the panel.
CONCLUSION:  
As the relevant material, regarding pendency of Crime No.66 of 2011, was not
taken into consideration by the District Collector while examining the "fitness"
of the 6th respondent for being empanelled in the panel of advocates forwarded
to the Government for being appointed as Additional Public Prosecutor and, as
this relevant fact, has not only an important bearing on the decision making
process but also on the integrity of the institution of the public prosecutor,
the impugned G.O. must be, and is accordingly, set aside. 
 It is open to the
Government either to consider the other names in the panel or call for a fresh
panel from the District Collector for appointment to the post of Additional
Public Prosecutor.  
In case a fresh panel is called for, the District Collector
shall, in the light of the observations made hereinabove, prepare a panel afresh
in accordance with law, and forward the same to the Government for its
consideration. 
Pending appointment of an Additional Public Prosecutor afresh, it
is open to the respondents to make interim arrangements and permit any other
Public Prosecutor, other than the 6th respondent, to hold additional charge till
appointment is made afresh.

The Writ Petition is disposed of accordingly.  No costs.

_____________________________    
RAMESH RANGANATHAN,J      
Date:  15.02.2013

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