TMI Blog2012 (1) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... the District Judge mandatory for appointment on the post of District Government Counsels along with consequential action. 3.The present writ petitions were part of the bunch of writ petitions whereby, the Circular dated 13.8.2008 has been impugned, the leading one of which is Writ Petition No.7851 (M/B) of 2008: U.P. Shaskiya Adhivakta Kalyan Samiti. Vs. State of U.P., decided by separate judgment and order dated 6.1.2012. Keeping in view the fact that vires of U.P. Amendment (supra), has been impugned in the present writ petitions, it is decided by the present separate judgment. 4.The appointment of District Government Counsels in the State of U.P., has been drawing the attention of this Court as well as Hon'ble Supreme Court from time to time particularly, after the impugned amendment done by the State Government to acquire unfettered discretion and to regulate the appointment of District Government Counsels as well as the standing counsels of the High Court by executive instructions issued from time to time compiled in the name and title of Legal Remembrancer Manual (in short the LR manual). After a lot of discussion and reports at various levels, inviting opinions f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l though according to petitioner's counsel, the District Judge, Budaun has recommended the petitioner for renewal. The petitioner was removed by the order dated 21.12.2009. The order of removal was challenged by the petitioner in Writ Petition No.54 (M/B) of 2010. A Division Bench of this Court, vide order dated 5.1.2010, directed the petitioner to continue on the post of District Government Counsel (Criminal). According to petitioner's counsel much before the expiry of term in April, 2011 the post of Additional District Government Counsel (Criminal), the District Magistrate, by the order dated 24.12.2010, directed the petitioner to furnish details of work done which was received by the petitioner on 1.1.2011. The petitioner immediately responded and submitted her reply dated 3.1.2011 which was received in the Office of the District Magistrate on 4.1.2011. However, before receipt of reply, the State Government has removed the petitioner on 30.12.2010. 6.The order of removal dated 30.12.2010 was impugned in Writ Petition No.589 (M/B) of 2011. By the interim order dated 7.2.2011, the Division Bench of this Court directed the petitioner to continue as Additional District Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prosecutor has been appointed appoint any other person, not being an officer of police below [such rank as the State Government may prescribe in this behalf], to be Public Prosecutor for the purpose of [any case]. 493. The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein, under his directions. 494. Any public Prosecutor * * * may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person [either generally or in respect of any one or more of the offences for which he is tried]; and, upon such withdrawal-- (a) if it is made before a charge has been framed, the accused shall be discharged [in respect of such offence or offences]; (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (Act XXV of 1861), which was later on, replaced by Act X of 1872. It was the Criminal Procedure Code of 1882 (Act X of 1882) which gave, for the first time, a uniform law of procedure for the whole of India both in presidency-towns and in the moffisil; and later on, it was supplanted by the Code of Criminal Procedure, 1898 (Act V of 1898). This last mentioned Act had been amended by many amending Acts, the most important being those passed in 1923 and 1955. The extensive amendments of 1955 were made with intent to simplify procedure and speed up trials. The State Government too made a large number of amendments to the Code of 1898. But on the whole, the Code of 1898 remained unchanged for a very long period. 13.While inserting Section 24 in the Code of Criminal Procedure, 1974, at the time of presentation of Bill, Clause (8) deals with the aims and object, which is based on Law Commission Report and is reproduced as under: Clause 8-- The section is being amended (i) to enable the Central Government and State Government to appoint one or more Additional Public Prosecutors for the High Court; (ii) to enable the Central Government to appoint one or more Public Prosecutors in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 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. (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 sub-section (8), the period during which a person has been in practice, is a pleader, or has rendered (whether before or after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the State Government under sub-section (3), or as the case may be, sub-section (8), of section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of section 25 shall be subordinate to the Deputy Director of Prosecution. (7)The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify. (8)The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.]. 15.Section 25-A was inserted by the Code of Criminal Procedure Amendment Act, 2005 (Act No.25 of 2005) S.4 enforced from 23.6.2006 constituting Directorate of Prosecution. Under Section 25A, the Head of Directorate of Prosecution shall be the Director of Prosecution. The Director of Prosecution shall be the person who has been in practice as Advocate for not less than 10 years and his appointment shall be with the concurrence of the Chief Justice of High Court. Thus, reading of Section 25-A reveals t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded LR Manual contains the provisions with regard to effective consultation with the District Judge while preparing the panel for the District Government Counsels. According to original provisions, while choosing the Advocate, opinion should be formed keeping in view the reputation, professional conduct, competency, behaviour and conduct of the lawyers. 19.Now, it is no more res integra that LR manual is authoritative compilation of Government orders and instructions for the conduct of legal affairs of the State Government, vide (1991) 1 SCC 212: Km. Shrilekha Vidyarthi and others. Vs. State of U.P.; (1993) 3 SCC 552: Harpal Singh Chauhan. Vs. State of U.P.; (1994( 2 SCC 204: State of U.P. U.P. State Law Officers Association and AIR 2004 SC 3800: State of U.P. Vs. Johri Mal. 20.Para 7.01, 7.02, 7.03, and 7.04 of LR Manual regulate the procedure for appointment of District Government Counsels which provide that it shall be obligatory on the part of the District Magistrate to obtain the opinion of the District Judge. Before sending the panel to State Government, applications should be invited from the lawyers having practice of 10 years in the case of District Government Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t exhaustive provisions are laid down in LR Manual, which is a complete code in itself. To reproduce relevant portion, Para 84, 85, 86, and 87 of Johri Mal's case (supra), as under: 84. Keeping in mind the aforementioned legal principles the question which arises for consideration in these appeals is, the nature and extent of consultation, a Collector is required to make with the District Judge. 85. The age-old tradition on the part of the State in appointing the District Government Counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles. Whereas the District Judge is supposed to know the merit, competence and capability of the concerned lawyers for discharging their duties; the District Magistrate is supposed to know their conduct outside the court vis-`-vis the victims of offences, public officers, witnesses etc. The District Magistrate is also supposed to know about the conduct of the Government counsel as also their integrity. 86.We are also pained to see that the Stat of Uttar Pradesh alone had amended sub-section (1) of Section 24 and deleted sub-sections (3), (4) and (5) of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a Division Bench of Allahabad High Court while deciding a case reported in 2003 ALR 302: Virendra Pal Singh Rana and another Vs. State of U.P. and others, had issued mandamus directing the State Government of U.P. to follow the LR Manual in strict sense and make necessary amendments to give primacy to opinion of District Judge over and above the District Magistrate. 26.Hon'ble Supreme Court in the case reported in (1979) 4 SCC 710: Madhukar Prasad Singh Vs. State of Bihar; (1993) 3 SCC 552: Har Pal SinghChauhan. Vs. State of U.P.; (2004)4 SCC 478: State of U.P. Vs. Netrapal Singh; (2011) 5 SCC 305: State of U.P. Vs. Hirendra Pal Singh as well as in the case of Johri Mal (supra), held that it is mandatory to obtain the opinion of District Judge while making appointment on the post of District Government Counsels and in the event of conflict, the opinion of the District Judge shall prevail. 27.Ignoring the consistent view of this Court and Hon'ble Supreme Court and the binding precedents, by the impugned Circular dated 13.8.2008, the age old provisions contained in LR Manual is amended and entire recommendatory power has been conferred on the District Magistrate of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... नादेशों को अतिकृमित करते हुए विधि परामर्शी निर्देशिका के प्रस्तर 7.03, 7.06, 7.08, 7.13, 8.02, 8.03, 8.04, 8.05, 8.06 एवं 8.07 के स्तम्भ--1 में अंकित वर्तमान प्राविधानों के स्थान पर स्तम्भ--2 में अंकित प्राविधान प्रतिस्थापित कहने की सहर्ष स्वीकृति प्र& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... जिला सरकारी अभिवक्ता की दशा में 10 वर्षों तक विधि व्यवसाय किया हो, सहायक जिला सरकारी अभिवक्ता की दशा में 7 वर्षों तक और अधीनस्थ जिला सरकारी अभिवक्ता की दशा में 5 वर्षों तक विधि व्यवसाय किया हो। जिला अधिकारी ऎसे ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2325;े द्वारा किये गये कार्य का न्यायालय द्वारा यथाविधि सत्यापित ब्यौरा और यह सूचना कि क्या उन्होंने आपराधिक, सिविल और राजस्व सम्बन्धी विधि कार्य किया है। जब कभी किसी जिले में जिला सरकारी अभिवक्ता का पद ती& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2360;्यों से अपेक्षा करेगा, जो किसी विशेष पद पर नियुक्ति हेतु अपने नाम पर विचार कराना चारहते हों, कि वे अपने नाम और ऎसे विवरण दें, जैसे आयु, विधिक वर्ग संस्था (बार) में किये गये विधि व्यवसाय की अवधि, हिन्दी में प्रापî ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... सायी भी जिला सरकारी अभिवक्ता के पद के लिये अपने जिलाधिकारियों के माध्यम से उपरोक्त विवरण भेज सकते हैं, जो उन्हें उस जिले के जिला अधिकारी, को अपनी ऎसी अभ्युक्ति सहित, जो वे उपयुक्त समझें, भेज देंगे, जिसमें निय&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66;रियों (अतिरिक्त, सहायक जिला सरकारी अभिवक्ता) यदि कोई हो, के दावों पर उचित रूप से विचार करेगा, और गोपनीय रूप से वरीयता के क्रम में प्रत्येक पद के लिये तीन विधि व्यवसायियों के नाम विधि परामर्शी को भेजेगा और इसकí ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1;थिति, सिविल, आपराधिक या राजस्व विधि की और हिन्दी की प्रवीणता पर विशेष रूप से ध्यान दिया जायेगाः (3) इस प्रकार प्राप्त नामों पर जिला अधिकारी जिला न्यायाधीश से परामर्श करके विचार करेगा। जिला अधिकारी वर्तमा&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66; अधिकारी विधि परामर्शी को अपनी सिफारिशें भेजते समय अन्य अभ्यर्थियों द्वारा दिये गये विवरण (biodata) तथा अपने और जिला न्यायाधीश द्वारा की गयी ऎसी टीकाओं को भेजेगा, जो वह उचित समझे। सिफारिशें करते समय अभ्यर्थी की &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0;े स्वीकार करने की स्वीकृति प्राप्त कर ली जायेगी। प्रतिबन्ध यह है कि जिला अधिकारी को सदेव इस बात की स्वतंत्रता होगी कि वह किसी ऎसे व्यक्ति का नाम की भी सिफारिश करे, जो उपयुक्त समझा जाय और जिसने नियुक्ति के ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... आचरण असंतोषजनक पाया जाये तो इस विषय की रिपोर्ट शासन के आदेशार्थ की जायेगी। यदि उसके कार्य तथा आचारण की रिपोर्ट संतोषजनक हो तो उसे प्रपत्र संख्या-1 में आबंध का विलेख तीन वर्षों से अनधिक अवधि के लिए दे दिया जा ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 332;ायेगी। यदि उसके कार्य तथा आचारण की रिपोर्ट संतोषजनक हो तो उसे प्रपत्र संख्या-1 में आबंध का विलेख तीन वर्षों से अनधिक अवधि के लिए दे दिया जायेगा। उसकी प्रथम नियुक्ति के समय उसे प्रपत्र संख्या-2 की एक प्रति दी ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 375; अभिवक्ता की नियुक्ति को बढ़ाया जाये अथवा नहीं? जिला अधिकारी की सिफारिश के साथ जिला न्यायाधीश की राय की एक प्रति भी भेजी जायेगी। जिला सरकारी अभिवक्ता की पदावधि की समाप्ति के कम से कम 3 मास पूर्व जिलाधिकार ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... िर्दिष्ट अवधि के लिये की जाये तो जिला अधिकारी द्वारा उसके लिये कारणों का भी उल्लेख किया जायेगा। (2) यदि जिला सरकारी अभिवक्ता की पदावधि को बढ़ाने की सिफारिश किसी निर्दिष्ट अवधि के लिये की जाये तो जिला अधिक ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ेख करेगा, और विशेष रूप से उसके व्यावसायिक आचरण का, 1) जिला न्यायाधीश एक वकील की क्षमता के विभिन्न पहलूओं को ध्यान में रखकर न्यायिक दृष्टि से अभिवक्ता के कार्य, जो कि राज्य के मामलों को उसके समक्ष संचालन करते ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0;में जन साधारण में होने वाली उसकी ख्याति उसके आचरण, सत्यनिष्ठता तथा व्यावसायिक आचरण का उल्लेख किया जायेगा। (4) यदि विधि परामर्शी, जिला अधिकारी और जिला न्यायाधीश द्वारा सरकारी अभिवक्ता के अच्छे कार्य पर ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... िकारी और जिला न्यायाधीश द्वारा सरकारी अभिवक्ता के अच्छे कार्य परिश्रम और सत्यनिष्ठा के सम्बन्ध में दिये गये प्रमाण-पत्र और इस सिफारिश से सहमत हों कि सरकारी अभिवक्ता की पदावधि का नवीनीकरण किया जाये तो वह & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5;ो शासन के आदेशार्थ प्रस्तुत करेगा। यदि शासन किसी सरकारी अभिवक्ता को पुनः नियुक्त न करने का निर्णय ले, तो विधि परामर्शी जिला अधिकारी से पैरा-7.03 में दी हुयी रीति के अनुसार नई सिफारिश भेजने का अनुरोध करेगा। (5) & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1;ति के प्रत्येक नवीनीकरण की अवधि की समाप्ति पर इस पैरा में विहित प्रक्रिया का पालन किया जायेगा। (6) जिला सरकारी अभिवक्ता की अनुवर्ती नियुक्ति के प्रत्येक नवीनीकरण की अवधि की समाप्ति पर इस पैरा में विहित प&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5; विधि व्यवसाय करने वाले वकीलों में एक सूचना परिचालित कराएगा, जिन्होंने न्यायालय में कम से कम पांच वर्ष तक विधि व्यवसाय किया हो, और उनसे नामिका में सम्मिलित किये जाने के विचारार्थ अपनी सहमति और अपनी योग्यत ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2369;क्तता के सम्बन्ध में विशेषकर अपनी अभ्युक्ति में उल्लेख करेगा। (2)- जिलाधिकारी अन्य सभी आवेदन पत्रों को भी विधि परामर्शी को भेजेगा और उनके साथ वह उप पैरा (1) में अभिदिष्ट विषयों के सम्बन्ध में अपनी या जिला न्य ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 367;या जायेगा कि नामिका में उसकी नियुक्त किये जाने के पूर्व उसे अपने द्वारा धारण किये हुए पद से त्यागपत्र देना होगा। 8.02 नामिका वकीलों के लिऎ आवेदन पत्र-(1) जिलाधिकारी ऎसे विधि व्यवसाय करने वाले वकीलों में एक सू& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... को उन वकीलों के नाम भेजेगा, जिनकी वह वरीयता के क्रम में नियुक्त किये जाने की सिफारिश करे। वह सिफारिश किये गये व्यक्तियों के चरित्र, व्यवसायिक आचरण, सत्यनिष्ठा और उपयुक्तता के सम्बन्ध में विशेषकर अपनी अभ्य ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60;े ऎसे अभ्यर्थी की सिफारिश की जी जाये, तो जिलाधिकारी विशेष रूप से इस तथ्य की शासन को सूचना देगा और ऎसी सिफारिश किये जाने के कारण भी देगा। ऎसे मामले में अभ्यर्थी से वचन ले लिया जायेगा कि नामिका में उसकी नियुक्त ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 326;ित प्रक्रिया का पालन किया जायेगा। 8.03- श्रम नामिका वकील- यदि फैक्टरीज एक्ट या अन्य श्रमिक विधि के अधीन मामलों के संचालन के लिए नियुक्ति की जानी हो, तो जिलाधिकारी इस अध्याय मे उल्लिखित प्रक्रिया का पालन करे ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0;े किसी अभ्यर्थी के विष्य में ऎसे अतिरिक्त विवरण मांग सकता है, जो आवश्यक समझे जाय। 8.04- जिलाधिकारी की सिफारिशें--(1)-- विधि परामर्शी या उसके विभाग के ऎसे अन्य अधिकारी द्वारा जिसे विधि परामर्शी ने यह कार्य सौंपा ह ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... रम्भ में एक से अनधिक वर्ष की अवधि के लिए नियुक्त किया जायेगा। (2)-- उसके बाद नामिका वकील की पदावधि एक समय में तीन वर्षों से अनधिक अवधि या अवधियों के लिए बढ़ायी जा सकती है। 8.05- नियुक्ति की अवधि--(1)-- पैरा 8.04 के अधीन नियु& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2350;य में तीन वर्षों से अनधिक अवधि या अवधियों के लिए बढ़ायी जा सकती है। 8.06-- नवीकरण की प्रक्रिया--(1)-- जिलाधिकारी द्वारा समय-समय पर नामिका वकील की पदावधि निम्नलिखित की सहमति से बढ़ायी जा सकती हैः- (क)-- नामिका वकील (&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2368; है जबकि वह सम्बन्धित वकील के चिरत्र, व्यवसायिक आचरण तथा सत्यनिष्ठा से सन्तुष्ट हो। जिलाधिकारी ऎसे नवीकरण की रिपोर्ट तुरन्त विधि परामर्शी को करेगा। (2) यिद जिलाधिकारी किसी नामिका वकील के पदावधि के न ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2360;्पष्टीकरण-- यदि जिलाधिकारी द्वारा किसी नामिका वकील की पदावधि पैरा 8.06 (2) के अधीन न बढ़ायी गयी हो, तो वह अपनी पदावधि की समाप्ति के पश्चात नामिका में नहीं रहेगा, जब तक की जिलाधिकारी शासन के नियंत्रणाधीन अन्यथा आद ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2325;ता है। स्पष्टीकरण-- यदि जिलाधिकारी द्वारा किसी नामिका वकील की पदावधि पैरा 8.06 (2) के अधीन न बढ़ायी गयी हो, तो वह अपनी पदावधि की समाप्ति के पश्चात नामिका में नहीं रहेगा, जब तक की जिलाधिकारी शासन के नियंत्रणाधीन अ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58;ों के अनुसार समुचित कार्यवाही कहते हुए अपने जिले के समस्त शासकीय अधिवक्ताओं को अवगत कराने का कष्ट करें। भवदीय, ह० अपठनीय ( सैय्यद मजहर अब्बास आब्दी) प्रमुख सचिव न्याय एवं विधि परामर्शी। '' संख्या- ड ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ्ञा से, ह० अपठनीय ( अमर सिंह) विशेष सचिव, न्याय एवं अपर विधि परामर्शी ।'' 28.While assailing the impugned U.P. Amendment Act, Sri Manoj Goyal, learned counsel has relied on the cases reported in (1991) 1 SCC 212: Kumari Shrilekha Vidyarthi and others. Vs. State of U.P. and others; (1989) 3 SCC 293: M/s. Dwarkadas Marfatia and Sons. Vs. Board of Trustees of the Port of Bombay; (1993( 3 SCC 552: Harpal Singh Chauhan and others. Vs. State of U.P.; (1995( 6 SCC 527: State of U.P.. Vs. Ramesh Chandra Sharma and others; (2004) 4 SCC 714: State of U.P. and another. Vs. Johri Mal; (2004) 4 SCC 748: State of U.P. and others. Vs. Netra Pal Singh and others; (2011) 1 UPLEBC 104: State of U.P. Ors. Vs. Hirendra Pal Singh etc., 2011 (5) SCLE 303: State of U.P. and others. Vs. Rakesh Kumar Keshari another; (1995) 1 SCC 732: Indian C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Police. Vs. Gordhandas; (2002) 7 SCC 104: Secretary to Government, TN and another. Vs. K. Vinayagamurthy; (1979) 3 SCC 489: Ramana Dayaram Shetty. Vs. International Airport Authority of India and others; (2005) 5 SCC 665: Sarbananda Sonowal. Vs. Union of India and another; (1986) 3 SCC 385: Rattan Arya and others. Vs. State of Tamil Nadu and another; and (1983) 2 SCC 33: State of Gujarat and another. Vs. Raman Lal Keshav Lal Soni and others. 29.On behalf of the State, it has been vehemently argued that the impugned amendment has been challenged after two decades hence writ petition should be thrown out on this ground alone. Learned Senior Counsel Sri Raghwendra Kumar Singh, also claimed that power of State Government to amend the CrPC, is constitutional power and courts should not interfere with the impugned amendment. He also claims State's right to amend the CrPC and objected to courts' power of judicial review under the doctrine of separation of powers. He submits that once the President of India has assented and impugned amendment has been incorporated, it is not open to judicial review that too, when the matter relates to appointment of District Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Government has been enjoying in the pre-constitutional era during the colonial rule with regard to appointment of District Government Counsels under the Code of Criminal Procedure, 1898. Needless to retreat that under Part IX of Code of Criminal Procedure, 1898 (supra), the entire power with regard to appointment of District Government Counsels was vesting in the District Magistrate of District under the control of the State and the Central Government which was given go bye in the new Code of Criminal Procedure, 1973 through Section 24 of the Act. 32.The argument of the learned counsel for the petitioner seems to carry weight. Upto 13.8.2008, there was no need to challenge the impugned amendment since the appointment of the District Government Counsels was regulated by the procedure contained in the LR Manual. By issuing the Circular dated 13.8.2008, the State Government virtually, is trying to enforce the Amending Act No.18 of 1991 for the first time acquiring the power to appoint the District Government Counsels without obtaining the recommendation of the District Judge. 33.It is trite in law that the Constitution has not prescribed any period of limitation for filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come of the business and is, therefore, without authority. The appellant has offered explanation for not raising the question of legality in the earlier proceedings. It appears that the authorities proceeded under a mistake of law as to the nature of the claim. The appellant did not include the earlier demand in the writ petition because the suit to enforce the agreement limiting the liability was pending in appeal, but the appellant did attempt to raise the question in the appeal itself. However, the Court declined to entertain the additional ground as it was beyond the scope of the suit. Thereafter, the present writ petition was filed explaining all the circumstances. The High Court considered the delay as inordinate. In our view, the High Court failed to appreciate all material facts particularly the fact that the demand is illegal as already declared by it in the earlier case. 13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2)The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3)The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4)No hard-and-fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5)That representations would not be adequate explanation to take care of the delay. 30. Another principle of law of which cognizance deserves to be taken is that in exercise of power u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges of the district concerned. Whether the impugned amendment is hit by fundamental rights guaranteed under Part-III of the Constitution or not, is a question which requires to be adjudicated by this Court under the process of judicial review also for the reason that the LR Manual is the compilation of Government orders (supra) and the Government has no right to change its circulars and orders from time to time ignoring the report of the Law Commission. Abuse of power in the absence of statutory provisions may be noticed from the facts discussed, findings recorded in the leading Writ Petition No.7851 (M/B) of 2008 and other connected writ petitions decided separately. In view of the above, the present writ petition does not seem to be barred by delay and laches and requires adjudication on merit. III- SOVEREIGNTY, SEPARATION OF POWER AND ROLE OF COURT 35.During the course of argument, prerogative has been claimed by the State Government in the matter of appointment of District Government Counsel under its sovereign power with the plea of separation of power asserting that the courts are not concerned to whom the State Government appoints as Government Counsel. 36.Soverei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has for its correlative subject . In this sense, term can receive no application; for it has no object in the Constitution of the United States. Under that Constitution there are citizens, but no subjects. The term subject occurs, indeed, once in the instrument; but to mark the contrast strongly the epithet foreign is prefixed. In another sense, according to some writers, every state which governs itself without any dependence on another power is a sovereign state. There is a third sense in which the term sovereign is frequently used. In this sense, sovereignty is derived from a feudal source, and like many other parts of that system, so degrading to man, still retains its influence over our sentiments and conduct, though the case by which that influence was produced never extended to the American States. The accurate and well informed President Henault, in his excellent chronological abridgment of the History of France, tells us that, about the end of the second race of kings, a new kind of possession was acquired under the name of fief. The governors of cities and provinces usurped equally the property of land and the administration of justice, and established themsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional scheme, there is no strict separation of power and is overlapping but it appears that in some of the judgments decided by the Bench of lesser number of Judges, Montesquieu has been relied upon as a ground not to interfere with the State action even if it causes public harm. 42. With profound respect, it appears that Montesquieu's treatise 'Spirit of Laws' has not been read as a whole by Hon'ble Judges who followed Montesquieu blindly. The wholesole and overall reading and understanding of the treatise, Spirit of Laws written by Montesquieu reveals that the separation of power among three wings of the government is theoretical and may be made applicable in an ideal State means where persons holding offices in all three wings of the government, i.e. legislature, judiciary and executive are honest, fair and learned. In case there are allegation of corruption, casteism, nepotism or abuse of power against the members discharging sovereign function, then the Montesquieu's doctrine shall not only be impractical but may result in serious consequence in due course of time. Thus, the peoples' representatives seem to have failed to check infiltra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der to dacoity. Most of them contested as 'Independents', but there were BJP, Congress, RJD, and Samata candidates as well. Maharashtra is also suffering from the same disease. During the municipal elections in 1997, 150, 72, and 50 candidates with past or present difficulties with the law (Godbole 1997) were fielded from Mumbai, Nagpur, and Pune respectively. Andhra Pradesh is not lagging behind, since in 1999 an NGO called Lok Satta Election Watch released a list of 46 candidates contesting elections to the Lock Sabha or the Legislative Assembly with, allegedly, some criminal background (The Hindu, 3 September 1999 : 5). Delhi is also new in this circle of most criminalized states. In fact, Delhi is gradually taking over from Mumbai as the crime capital of India. This city-state tops the list of number of crimes per head, with 527 in 1996 (against 121 in Bihar) and, in terms of percentage change, with +55 per cent change in 1996 over the quinquennial average of 1991-5 (Swami 1998 : 17). Out of 815 Legislative Assembly candidates in 1998, 120 had more than two criminal cases registered against them, and out of 69 MLAs, 33 had criminals cases against them (The Hindustan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution were wise enough to take care of such situation. With foresightedness while considering the process of judicial review under Art. 226 of the Constitution of India, they used the words, for other purposes and gave ample power to Hon'ble Supreme Court to interfere under Art. 32 in the event of violation of fundamental right of the citizens straightway. Conferment of such power to the High Courts and Supreme Court by the constitutional framers belies the argument with regard to strict separation of power. Needless to say that in the event of judicial overstepping or arbitrariness, legislators have got ample power to legislate law to dilute the effect of judgments of courts. In such a situation, remedy is to check and balance which has been provided in the Indian Constitution and affirmed by Hon'ble Supreme Court from time to time holding that the separation of power is not applied under Indian Constitutional Scheme in strict sense. 46.Under Article 143 of the Constitution of India, the President of India, has been conferred power to seek opinion from Hon'ble Supreme Court. Article 144 provides that all civil and judiciary authority shall act in aid of Hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sharma, (1973)4 SCC 225 Keshvanand Bharti versus State of Kerala. 50.In 1975 Supp. SCC 1: Indira Nehru Gandhi. Vs. Raj Narain, the Constitution Bench of Hon'ble Supreme Court of India, opined that doctrine of separation of power is carried into effect in countries like America, Australia. In India, separation of powers is in a broader sense and not unlike America and Australia where it is in strict sense. The constituent power is independent of the doctrine of separation of powers. The constituent power is sovereign. It is the power which creates the organs and distributes the powers. The rigid separation of power as in American or Australian Constitution, does not apply to India. Though the legislature is entitled to change with retrospective effect the law which forms the basis of judicial decision, it is mot permissible to legislature to declare judgment of Court to be void or not binding. The Indian Constitution does not recognise the rigid separation of power. The reason is that the concentration of powers in any one organ may, by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic government to which we are pledged. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gan and as one of the three functionaries of the State, and secondly, the independence of the individual Judge. Their lordships ruled that Constitution of India did not fully envisage complete separation of powers. The power of judicial review has been conferred as a safeguard not only to ensure the independence of judiciary but also to prevent Judge from vagaries of executive. Their lordship held that judiciary has to be inspired by the values enshrined in our Constitution. If rule of law is to run akin to rule of life and a feudal society is to be transformed into an egalitarian society by the rule of law, an introduction of the element of reflection of popular will so as to make judicial system more viable and effective as an instrument of change is inevitable and total aloofness of judiciary is inconceivable. 53.In 1989 Supp (2) SCC 364: Asif Hameed. Vs. State of J. K., Hon'ble Supreme Court observed that although, the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the Constitution-makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od order of the people. Sovereignty is difficult to define. This power of sovereignty is, however, subject to Constitutional limitations. This power according to some constitutional authority, is to the public what necessity is to the individual. 55.After the case of Synthetic Chemicals Ltd. (supra), Hon'ble Supreme Court reiterated the aforesaid principle with regard to broader separation of power in the case reported in (1982)1 SCC 271 A.K. Roy versus Union of India, AIR 1987 SC 331 State of Kerala versus A. Lakshmikutty, (2007)6 SCC 586 State of U.P. Versus Jeet S. Bisht, (1997)6 SCC 241 Vishaka, (1998)1 SCC 226 Vineet Narain, (2007)8 SCC 511 Fruti Commission Agents Assn. Versus Government of A.P and (2009)2 SCC 1 Mahmadhusen Abdulrahim Kalota Shaikh (2) versus Union of India. 56.In AIR 2010 SC 1476: State of W.B. Vs. Committee for Protection of Democratic Rights, a Constitution Bench of Hon'ble Supreme Court while upholding the right of higher judiciary with regard to enforcement of fundamental rights and direction to CBI to hold inquiry in a given case, has not found it to be a encroachment over other's jurisdiction. Hon'ble Supreme Court held that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India, a Constitution Bench of Hon'ble Supreme Court, after considering the case of Kesavananda Bharati (1973) 4 SCC 225 and inn Indira Nehru Gandhi case (1976) 3 SCC 321, ruled that in modern governance, the strict separation of power is neither possible nor desirable. The Indian Constitution does not prohibit overlap of functions, but in fact provides for some overlap as a parliamentary democracy. But what it prohibits is such exercise of function of the other branch which results in wresting away of the regime of constitutional accountability. This is the test for violation of separation of powers. The constitutional principle of separation of powers will only be violated if an essential function of one branch is taken over by another branch, leading to a removal of checks and balances. Till the principle of accountability is preserved, there is no violation of separation of powers. Accordingly, the MPLAD Scheme is not a violation of the concept of separation of powers. However, the Constitution Bench seems to have not taken into account the observation made by larger Bench of seven Judges in the case of Delhi Law Act 1912 (supra) whereby, the Article 53 (1) has been inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er held that an Act may be declared unconstitutional in case it is evident so as to leave no room of doubt. However, Hon'ble Supreme Court while concluding the opinion expressed the views as under: 88. In our opinion, therefore, while Judges should practice great restraint while dealing with economic statutes, they should be activist in defending the civil liberties and fundamental rights of the citizens. This is necessary because though ordinarily the legislature represents the will of the people and works for their welfare, there can be exceptional situations where the legislature, though elected by the people may violate the civil liberties and rights of the people. It was because of this foresight that the Founding Fathers of the Constitution in their wisdom provided fundamental rights in Part III of the Constitution which were modeled on the lines of the U.S. Bill of Rights of 1791 and the Declaration of the Rights of Man during the Great French Revolution of 1789. There appears to be no doubt over the proposition that the interference of the Court should be on the basis of legislative competent and in violation of fundamental right contained in Part-III of the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mity amongst nations and international peace were sine qua non for the welfare of the people was neither straight forward, nor inevitable. It took much suffering, bloodshed, toil, tears and exploitation of the people by their own governments and by foreign governments, both in times of peace and in times of war, before humanity began to arrive at the conclusion that unchecked power would sooner, rather than later, turn tyrannical against the very people who have granted such power, and also harmful to the peaceful existence of other people in other territories. Imperial expansion, as a result of thirst for markets and resources that the underlying economy demanded, with colonial exploitation as the inevitable result of that competition, and two horrific world wars are but some of the more prominent markers along that pathway. 114. The most tendentious use of the word sovereignty, wherein the principles of self-determination were accepted within a nation-state but not deemed to be available to others, was the rhetorical question raised by Adolf Hitler at the time of annexation of Austria in 1938: What can words like `independence' or `sovereignty' mean for a state of on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e world for some time. 'From France to South Africa to Israel, parliamentary sovereignty has faded away.' A dwindling number of political and constitutional theorists continue to resist the 'rights revolution' that is sweeping the globe, by refusing to accept that judicial enforcement of a constitutionally entrenched Bill of Rights is necessarily desirable.... For what it is worth, my opinion is that constitutional entrenchment might be highly desirable, or even essential, for the preservation of democracy, the rule of law and human rights in some countries, but not in others. In much of the world, a culture of entrenched corruption, populism, authoritarianism, or bitter religious, ethnic or class conflicts, may make judicially enforceable bills of rights desirable. Much depends on culture, social structure and political organisation. What explains the loss of faith in the old democratic ideal? I am aware of possible 'agency problems': failures of elected representatives faithfully to represent the interests of their constituents. In many countries this is a major problem. But I suspect that in countries such as Britain, Canada, Australia and New Zeala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more. The recent constitutional developments discussed by its critics are compatible with the doctrine. The author noted a passage from 'Constitutional and Administrative Law in New Zealand (3rd Edn.) pp.543-5), to quote as under:- Throughout English constitutional history, Parliament and the courts have exercised co-ordinate, constitutive authority... Theirs is a symbiotic relationship founded in political realities. Parliament and the political executive must look to the Courts for judicial recognition of legislative power, and the Courts must look to Parliament and the political executive for recognition of judicial independence. 74.Needless to say that to ensure public good now it has become collective effort of all the three wings of the Government with overlapping actions to some extent but keeping in view the judicial independence, from other two posts of the Governments. 75.The higher judiciary of India has been slow in interfering with the State actions. Limited enactments have been set aside. The consequence is manifold increase of corruption in the system of Governance including the criminalisation of politics and huge misappropriation of public fund and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute a proper trial structure, and the court's decision in moving ahead with clear evidentiary improprieties and insufficiencies. Lastly, the jurists noted that Bhutto's physical maltreatment at the hands of the state was ominous and a cause for international concern. (Page 168) 78.Anatol Lieven, a journalist, who had worked in Pakistan and conducted extensive research and also visited India, had written a book, Pakistan a Hard Country . While writing the book, learned author noted how the South Asia particularly, Pakistan and India are likely to suffer a lot because of blindly following the British legacy in dispensation of justice. In Pakistan, how extra constitutional pockets and extra constitutional nucleus power has been created affecting dispensation of justice is eye opener. This happens since higher judiciary could not evolve new principle of law to match the political evils. Now after sixty years, Chief Justice of Pakistan is striving to regenerate the democracy to establish rule of law but now seems to be too late. Learned author Anatol Lieven observed, to quote:- A visit to the Mohmand Tribal Agency in September 2008 (described further in Chapter 11) summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nerate and are generated by the lack of mutual trust the permeates Pakistani society, between but also within kinship groups. 80.In the aforesaid book, the author has cited several instances, how gradually the judiciary lost its significance, how the judiciary has become weaker and weaker day by day making people dischanted with the system. Judiciary has become an instrument to persecute the weaker in the hands of mighty people. 81.Poverty, illiteracy, lack of basic amenities, poor governance, are the prime concern not only for the citizens of the State of U.P., but for whole of India. According to Human Development Report, 2011, prepared by the Institute of Applied Manpower Research Planning Commission Government of India , published by Oxford University Press, though per capita income has grown but still, it is lower than several other States, to quote:- Over the years, the gap between the per capita income of the state and the national average has grown considerably. In 1950-1, the per capita income of Uttar Pradesh was 7 per cent lower than the national average. This difference had grown to 40 per cent in 2000-1 (Uttar Pradesh Human Development Report 2003). In rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... districts where these programmes were implemented. During the period 1996-7 to 1999-2000, enrolment in UPBEP districts increased by 68 per cent as against 37 per cent in non-UPBEP districts (Uttar Pradesh Human Development Report 2003). Poor infrastructure along with inadequate financial allocation were the major hindrances in achieving higher educational targets. The state allocation o n education increased from 0.5 per cent of the SDP in 1950-1 to 3.2 per cent in 2007-8, but it is still very low compared to the demand. 84. With regard to Basic household amenities again, Uttar Pradesh is marginally below the national average in terms of improved drinking water facilities to quote:- In terms of basic household amenities, the performance of the state is marginally below the national average in terms of improved drinking water facilities. However, it is one of the rare states where the average for the SC and ST households was better than the state average and also than the national average for their respective communities iin terms of access to improved sources of drinking water (Figure 7). In the case of sanitation, the state average is slightly better than the all India ave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and social interest. 87. It may be noted that according to the report (Hindustan Times dated 9.8.2011), amongst 395 members of the legislative assembly of the State of U.P against 138 members (34%), criminal cases are pending. Out of 138, against 72 members of the Legislative Assembly(18%), cases with regard to heinous crime like murder, kidnapping, robbery, dacoity, extortion, rape and sale of minors etc are pending. 88. According to an Article published in Times of India dated September 2, 2011, written by Dipankar Gupta, the record of 15th Lok Sabha is also not encouraging; rather it is a matter of deep concern for the civilised society. In 15th Lok Sabha, as many as 153 (162 according to author report) MPs have criminal records, out of which, 74 of them are charged with serious offences like murder, abduction, misappropriation of public fund etc. Thus, the peoples' representatives seem to have failed to check infiltration of persons having criminal record in the legislative bodies. 89. Coming to second limb of governance, the bureaucracy, where also things are not too good. It is of common knowledge that substantial number of bureaucrats succumb to politica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, many other IAS officers-ashamed and disgusted. One hopes they will be punished and driven out of the service. Apart from corruption, there are others who openly practice nepotism, who manoeuvre to get themselves coveted postings, who cultivate people who they think will be useful to them in some way at some time. 91.Another I.A.S. Officer Shri Radhey Shyam Agarwal while writing his autobiography, titled Inside Story of....Bureaucracy has given glimpse of state of affairs of bureaucracy in U.P., in the following words : As a matter of fact the new Minister wanted to shift the responsibilities on to me and would not like to be bothered by others. I had a lot of difficulty in dealing with the union leaders who always had been putting forth their demands of promotion and transfer. Whenever they went to meet the director, he always referred them to me. The actual fact was rather different. He would say something to me and would do something otherwise. 92.Learned author(supra) while in-capsuling his experience suggested to adopt remedial measures to maintain the intellectual integrity of political bosses as well as that of the bureaucracy in the following words : This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are capable of being part of a legacy which provided this nation the foundations on which the edifice of good governance stood. And that is where the greatest challenge to the police force lies today, when the moral fabric of the nation seems to be tearing apart in the absence of an optimal governance system, characterised by a near total absence of accountability; where loyalty takes precedence over the sense of one's duty, and where national interests are often, and with impunity, subjugated to individual gains. 94. While discussing the fall of political system and bureaucracy, the Times of India, Lucknow dated 17.10.2011 remarked, The steel framework is cracking - bending under the weight of people's expectations and being pulled down by the political class. The IAS and IPS officers themselves are caught in a debilitating dilemma as governance, in the words of Vinod Rai, touches a new low . 95.After considering number of instances with regard to evil or persecuted bureaucracy, the reporter(supra) considering the plight of certain honest upright officers observed, to quote :- It's an evil throughout the country. Ruling parties do post people arbitrarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... REPORTS AND ITS IMPORTANCE 97.India attained freedom with the advent of new Constitution from 26.1.1950. Right from the beginning, Indian law framers, different law commissions and higher judiciary as well as the members of bars were in effective discussion to streamline the criminal prosecution by independent prosecuting agency. The law Commission as first constituted, presented its report on 26.9.1958. In the 14th Report of Law Commission (1958), it has been suggested as under: Suggested remedial measure--We therefore, suggest that as a first step towards improvement, the prosecuting agency should be completely separated from the Police Department. In every district, a separate Prosecution Department may be constituted and placed in charge of an official who may be called a 'Director of Public Prosecutors'. The entire prosecution machinery in the District should be under his control. In order to ensure that he is not regarded as a part of the Police Department, he should be an independent official directly responsible to the State Government. The departments of the machinery of criminal justice, namely, the Investigation Department and the Prosecuting Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter1, we have recommended that in every district a separate prosecution department should be constituted and placed in charge of a Director of Public Prosecutions, or, if this is not considered feasible, of the Public Prosecutor of the district who should be given a greater authority, a higher status and a wider range of functions than he has at present, and approximating to those envisaged for the Director. Now, section 492 provides for the appointment of several Public Prosecutors in a district all of whom can apparently function at the same time. No qualifications are laid down in the law for a Public Prosecutor and the Government is empowered to appoint any one it likes to be a Public Prosecutor. We think that the Code should provide a better frame-work for organising the prosecuting agencies in the district in a systematic way, and for this purpose, we propose the following two sections in place of section 492:-- [1. See paras 18.24 and 18.25 above)] 492. Appointment of Public Prosecutor--(1) For every district the State Government shall appoint a Public Prosecutor. It may also appoint one or more additional Public Prosecutors for the district. (2) A person shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and held that prosecutors have duties to the State, to the public, to the Court and to the accused and, therefore, they have to be fair and objective while discharging their duties. To quote, relevant portion of the report of the Law Commission:- Public Prosecutors are really Ministers of Justice whose job is none other than assisting the State in the administration of justice. They are not representatives of any party. Their job is to assist the Court by placing before the Court all relevant aspects of the case. They are not there to see the innocent sent to the gallows; they are also not there to see the culprits escape conviction. 'Public Prosecutor' is defined in some countries as a public authority who, on behalf of society and in the public interest, ensures the application of the law where the breach of the law carries a criminal sanction and who takes into account both the rights of the individual and the necessary effectiveness of the criminal justice system. Prosecutors have duties to the State, to the public, to the Court and to the accused and, therefore, they have to be fair and objective while discharging their duties. 101.The Law Commission ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the police and the investigation process. He cannot advice the police in the matters relating to investigation. He is independent of Executive interference. He is independent from the Court but has duties to the Court. He is in charge of the trial, appeal and other processes in Court. He is, in fact, a limb of the judicial process, officer of Court and a minister of justice assisting the Court. He has duties not only to the State and to the public to bring criminals to justice according to the rule of law but also duties to the accused so that innocent persons are not convicted. Therefore, any scheme of appointment Pps/Addl. Pps, as well as Asstt. Pps, must result in the creation of an independent body of prosecuting officers, free from the executive and all external influences, free from police and must be able to enforce the rule of law without fear or favour, advance public interest in punishing the guilty and protecting the innocent. 103. Not only the Law Commission of India but the Law Commission of U.P. has also shown its deep concern to the falling standard of prosecuting branch of State of U.P. The observation made by the Law commission of U.P., shows the ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces were allowed to lapse their object was achieved by U.P. Act No.18 of 1991, the Code of Criminal Procedure (U.P. Amendment) Act, by which section 24 was amended. Under these amendments the requirement, in sub-section (1), of consultation with the High Court for appointment of Government Advocates and Addl. Govt. Advocates in the High Court was dispensed with. Similarly sub sections (4), (5) and (6) were deleted, with the result that neither the District Magistrate nor the Sessions Judge need be involved in the process of selection of District Govt. Counsel (Crl) and Addl. D.G.C.(Cr.). Thus Vidyarthi's case stands effectively nullified, and the ruling in State of U.P. v. U.P. State Law Officers Association (1994)2 SCC 204, supra, should apply to all such appointments as well as, giving legal sanction to the Spoils System. According to a newspaper report dated 1. December, 2000 (vide Hindi daily Jagaran dated 2.12.2000) a public interest litigation filed in the High Court before a Bench consisting of Hon'ble Justices Raza and Nigam questions the justification for excessive appointments of State counsel. According to the petitioner the number of State counsel at presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven if there is no Central legislation then possibly the Supreme Court or the High Court may try to remedy the situation through PIL directives as was done in the case of appointments to the posts of Director, CBI and the Chief Vigilance Commissioner at the Centre. Accordingly this Commission is not making any recommendation in regard to the amendment of sections 24 and 25 and will prefer to leave the matter to the Government of India or to the judiciary for taking steps for suitably streamlining the public prosecutions system. 104. In view of the above, it is obvious that the impugned amendment has been done contrary to the original ground reasons and report of Laws Commission to incorporate the impugned provisions contained in Section 24 of Code of Criminal Procedure, 1973. The provisions contained in Section 24 was in conformity with the report of Law Commission to make prosecuting branch independent. While submitting 197th Report, the Law Commission, of India has taken note of earlier judgment of Hon'ble Supreme Court reported in (1997) 4 SCC 770: Union of India. Vs. Sushil Kumar Modi, whereby, their lordship of Hon'ble Supreme Court held that the prosecutors should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they the Public Prosecutors selected from the Bar or appointed from among the Prosecuting Officers, will not stand the test of non-arbitrariness under Article 14 of the Constitution of India. The scheme must provide for appointing Public Prosecutors who shall bear all the qualities mentioned in Chapter II. As pointed by the Supreme court, Public Prosecutor's functions are inside the Criminal Courts. Pps/Addl. Pps deal with the cases of highest importance in the Sessions Courts which try persons accused of murder and other serious offences. The Judiciary--namely the Sessions Court and the High Court--have a stake in the appointment of these officers. Inefficiency or lack of integrity on the part of the Public Prosecutors not only affects society but may also reflect sadly on the judicial system. That is why, in the matter of appointment of these officers from the Bar as well as appointments from the Cadre, there must be adequate safeguards precluding arbitrary appointments by the Executive. Any scheme which permits arbitrary appointments without checks will be in violation of Article 14 of the Constitution. 105. Law Commission of India further taken note of judgment of Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Committee of the Law Commission are entitled to great respect as they are prepared by experienced persons after taking into consideration all relevant aspects and sometime the evidence collected by them from several sources. The reports of the Law Commission can be looked into to understand the history of the legislation, the object with which certain legal provisions were enacted and what advantage may be derived by adopting a particular policy. The Report of the Law Commission has been used by the Supreme Court to understand the history of legislation which was under consideration and the object with which it was passed. 111. In a case reported in AIR 1989 SC 1247 Mithilesh Kumari and another versus Prem Behari Khare, Hon'ble supreme Court held that where particular enactment or amendment is the result of the recommendation of the Law Commission of India, it may be permissible to refer to relevant report. Their Lordships relied upon the earlier judgment reported in AIR 1976 SC 2386 Shanta Singh versus State of Punjab where Hon'ble Supreme Court of India relied upon the Law Commission Reports with regard to Benami transactions. It was in pursuance to the report of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e System of Judicial Administration in this country made certain recommendations to improve the system. The Commission lamented that though we have been pouring money into a number of activities, the administration of justice has not seemed to be of enough importance to deserve more financial assistance. On the contrary, in a number of States not only had the administration of justice been starved so as to affect its efficiency, but it has also been made to yield revenue to the State. The report made recommendations in respect of various aspects of the service conditions of the judicial officers and also emphasised that there was no connection between the service conditions of the judiciary and those of the other services. The report further pointed out the salient features of the distinct work of the judges and emphasised the need among others, to increase the salaries and the superannuation age of the Judges as well as to improve the other facilities available to them including the provision for official residential accommodation. 13. These recommendations were made to improve the system of justice and thereby to improve the content and quality of justice administered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Record Association and others versus Union of India. 115. In the case reported in AIR 2006 SC 980 Rameshwar Prasad and others versus Union of India and others, while considering the matter with regard to appointment of Governor, their Lordships of Hon'ble Supreme Court noted the factual position that Raj Bhawans are increasingly turning into extensions of party offices and the Governors are behaving like party functionaries of a particular party. Hon'ble Supreme Court relied upon the Sarkariya Commission's Report and noted that the Governors were not displaying the qualities of impartiality expected of them. Their Lordships held that it has become imperative and necessary that right persons are chosen as Governor for the maintenance of sanctity of post. Hon'ble Supreme Court has taken into account the opinion expressed by Sarkaria Commission and National Commission to review working of the Constitution in the matter of appointment of Governors while expressing its views. 116. In a case reported in 2009(10) SCC 374, U.P. Cooperative Federation Limited versus Three Circles, Hon'ble Supreme Court has relied upon the 55th Report of the Law Commission, 1973 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, it was decided to amend Section 24 of the Code of Criminal Procedure, 1973 in its application to Uttar Pradesh to delete the necessity of consultation with the High Court for the appointment of Public Prosecutor in the High Court and preparation of panel of names by the District Magistrates for appointment of Public Prosecutors and Additional Public Prosecutors in the Districts. 2. It was also decided to amend Section 321 of the said Code to make it obligatory for the Public Prosecutor to obtain the written permission of the State Government before moving an application for withdrawal of a criminal case. 3. Since the State Legislature was not in session and immediate legislative action in the matter was necessary, the Code of Criminal Procedure (Uttar Pradesh Amendment) Ordinance, 1991 (U.P. Ordinance No.18 of 1991), was promulgated by the Governor on February 16, 1991, after obtaining the instructions of the President. 4. This Bill is introduced to replace the aforesaid Ordinance. 121. To keep pace with time, higher judiciary of various democratic countries of the world, are evolving new principles to enforce constitutionalism and rule of law in their respective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Objects and Reasons is not admissible as an aid to the construction of a statute but it can be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the bill to introduce the same and the extent and urgency of the evil which he sought to remedy. 129. In AIR 1958 SC 578 Express Newspapers Pvt. Limited versus Union of India, their Lordships of Hon'ble Supreme Court held that when the terms of statute are ambiguous or vague, the statement of Objects and reasons may be resorted for the purpose of arriving at true intention of the legislature. 130. In AIR 1963 SC 1356 S.C. Prashar versus Vasantasen, Hon'ble Supreme Court held that the Statement of Objects and Reasons may be referred for the purpose of ascertaining the circumstances which led to the legislation in order to find out what was the mischief which the legislation sought to remove is aimed at. 131. In State of West Bengal versus Union of India AIR 1963 SC 1241, Hon'ble Supreme Court observed that the statement of Objects and Reasons may be used for limited purpose of understanding the background and the antecedent state of affairs lead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain the intention of the legislature, actual or imputed and the Court must strive to interpret the statute as to promote and advance the object and purpose of the enactment. To reproduce relevant portion, to quote: 9. So we see that the primary and foremost task of a court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the court must then strive to so interpret the statute as to promote or advance the object and purpose of the enactment. For this purpose, where necessary the court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing, the written word if necessary. 136. Hon'ble Supreme Court in a case reported in AIR 1957 SC 29 State versus Govindan Thampi Bhaskaran Thampi observed that resort to the history of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other, their lordships of Hon'ble Supreme Court found that object and reason and preamble of the impugned Act was to provide for classification for the public purpose and approval of undertaking of Madras Race Club and for matters connect therewith are incidental thereto. Their lordships found that Club does not contain or own any resource of the Committee and even does not have any income from betting money except 5% commission hence the aims and object was imaginary and based on unfounded fact. There is no nexus with the provisions of the Act connect with the object contained therein. Hence Hon'ble Supreme Court reversed the judgment of High Court and restored the allotment of land. 144. In the case reported in (2001) 4 SCC 139: Union of India. Vs. Elphinstone Spinning and Weaving Co. Ltd. and others, the question cropped up before a Constitution Bench of Hon'ble Supreme Court whereby the action of taking over the management of the three cotton Mills, was upheld. High Court declared the acquisition unconstitutional. Their lordships held that legislature in modern State is actuated with some policy to curb some public evils or to effectuate some public benefit. Thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Act to be passed, but it can be used for limited purpose for ascertaining the conditions which prevailed at that time which necessitated the making of the law, and the extent and urgency of the evil, which it sought to remedy. The Statement of Objects and Reasons may be relevant to find out what is the objective of any given statute passed by the legislature. It may provide for the reasons which induced the legislature to enact the statute. For the purpose of deciphering the objects and purport of the Act, the court can look to the Statement of Objects and Reasons thereof . (Vide: Kavalappara Kottarathil Kochuni @ Moopil Nayar v. The States of Madras and Kerala Ors., AIR 1960 SC 1080; and Tata Power Company Ltd. v. Reliance Energy Ltd. Ors., (2009) 16 SCC 659). 53. In A. Manjula Bhashini Ors. (Supra), this Court held as under: The proposition which can be culled out from the aforementioned judgments is that although the Statement of Objects and Reasons contained in the Bill leading to enactment of the particular Act cannot be made the sole basis for construing the provisions contained therein, the same can be referred to for understanding the background, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite material to establish the aims and object of the amending Act as contained in prefatory note (supra). There is no pleading on record as to how and under what circumstances, summoning of opinion from the District Judge, shall cause delay. On the other hand, the State Government itself with regard to appointment of Assistant Public Prosecutors under Section 25 of the Act, framed Rules and appointments are done with the consultation of Public Service Commission. Substantially, almost on all the posts of Class-2 and above the State Government, and some of the posts under Class-III, are appointed in pursuance of recommendation of the Public Service Commission which take years in finalizing the matter. 151. The attention of Court has not been invited to any material that the District Judges kept the matter pending for inordinate period while sending their recommendations. 152. The Government has failed to discharge its obligation to establish that the consultation with the District Judge causes delay. Merely advancing the argument in the Court by the learned Senior Counsel representing the State, shall not suffice unless some instances are brought on record. Some inquiry should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointment of Prosecuting Officer in the High Court, must continue and State should not do anything which may go contrary to the constitutional spirit. 158. No material has been placed by the State Government as to how the State has been deprived of engaging the counsel of his own choice. 159. It may be noted that not only in this Court but even in the Hon'ble Supreme Court, and trial courts Special Counsels including senior counsels are engaged from time to time by the State of U.P. by investing millions of rupees. Even in the present case, Special Counsel has been engaged to argue the case. Accordingly, the second limb of argument with regard to aims and object, also seems to be without substance. 160. In view of the above, the impugned amendment seems to have no nexus with the object sought to be achieved. Only purpose which has born out from the rival argument is that the State Government wants unfettered discretion in the matter of appointment of District Government Counsel. How the unfettered discretion shall be sub-serving to constitutional goal, may be noticed from the Apex Court judgment in the case of (2004)4 SCC 158 Zahira Habibulla H. Sheikh and another vers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequential benefits that too, against the spirit of Principal Act, Hon'ble Supreme court struck down the provisions and allowed the writ petition with costs of ₹ 15,000/-. In view of the above, the impugned amendment being contrary to aims and object of the Principal Act, (Cr P.C., 1973) seems to suffer from unconstitutionality and vice of arbitrariness. VIII- OMISSION AND ARBITRARINESS 165. A perusal of the aims and object further reveals that the Legislature of State while promulgating the impugned amending Act, State has not taken into account the observations made by Hon'ble Supreme Court in the case of Km. Shrilekha Vidyarthi (supra) where, their lordship of Hon'ble Supreme Court have held that consultation with the District Judge is necessary to make the prosecution body independent in discharging their obligations. We have already dealt with the importance of prosecuting officers in a democratic polity to enable them to discharge their obligation independently without being influenced by the Government or political parties. The L.R. Manual also envisages that the prosecutors should be independent while assisting the court. 166. Hon'ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of prosecuting branch making it almost independent and out of the purview of the Government. The concurrence of Chief Justice in filling of vacancy of Director of Prosecution is an effort to make prosecution independent. 169. Proviso of Clause (2) of Article 254 empowers the Parliament to legislate the law on a subject matter already occupied by the State Government under List-III of Seventh Schedule. To the extent of repugnancy, the State Law shall be deemed to be modified, invalid or void. 170. Parliament has inserted Section 25-A (supra) to make the Prosecution Branch more independent than earlier was. Under sub-section (8) of Section 24 of CrPC, power was conferred on the State Government to appoint special counsel that too, without obtaining opinion from the District Judge or even the District Magistrate. Meaning thereby, special counsel were under the direct command and control of the State Government with regard to employment and discharge of duty. By inserting Section 25-A, Parliament provided that even special counsel shall discharge their obligation under the Directorate of Prosecution. Though, the power of State Government to appoint special counsel has been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field. 2.That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes. 3.That where the two statutes occupy a particular field, there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results. 4.That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field. 173. In AIR 1983 SC 150: T. Barai. Vs. Henry Ah Hoe and another, Hon'ble Supreme Court has considered the question with regard to repugnancy and taken into account all previous decisions of Hon'ble Supreme Court and held that clause (2) of Article 254 empowers the Parliament to repeal, amend in repugnant State Law even if it has become valid by virtue of Presidential Assent. Their lordships held that even State Law has not been repelled, it becomes void as soon as subsequent law of Parliament making repugnant. For conven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned amendment is considered simultaneously along with Section 25-A of CrPC or given effect to, then there appears to be inconsistency which is irreconcilable. In case said amendment is given effect to, it would lead to disobeying the provisions of Section 25-A. The letter and spirit of Section 25-A is to make Prosecution Branch independent. That is why, the Parliament provided that Director of Prosecution, shall be appointed with concurrence of the Chief Justice of High Court and the Public Prosecutor appointed to the High Court, shall be subordinate to the Director of Prosecution whereas, the Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed under sub-section (3) or sub-section (8) or Section 24, shall conduct cases before the court and every Special Public Prosecutor appointed under Section 25, shall work under the Deputy Director of Prosecution. There appears to be no dispute that the District Government Counsels are appointed in pursuance of the statutory provisions contained in sub-section (3) of Section 24 of CrPC. The Deputy Director of Prosecution has to work under the Director of Prosecution. 176. By lapse of time and after i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s renewal has not been denied. In the absence of categorical denial with regard to malafide and factual controversy while filing counter affidavit, the averments contained in the writ petition shall be deemed to be correct. 180. It is settled law that what cannot be done directly, it cannot be done indirectly vide, (2003) 2 Supreme Court Cases, 593- Dayal Singh and Others Vs Union of India and Others. 181. Much argument has been advanced by the learned Senior Counsel appearing for the State. The word, 'may', used in Section 25-A of Code of Criminal Procedure, is not mandatory. The argument advanced by the learned counsel, seems to be not correct. Section 25-A was added by the Parliament within the presumption that entire Section 24 is in operation without taking into account the deletion made by the State Government. 182. Sub-section (8) of Section 24 confers power on State Government to appoint Special Counsel of its choice and for that, no opinion is required from the District Judge or the High Court. Thus, under L.R. Manual also, subject to assigning reason, State is final authority to appoint Government Counsel. Under sub-section (8) of Section 24, State has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ironmental Action Group Ors. AIR 2006 SC 1489, this Court held that arbitrariness on the part of the legislature so as to make the legislation violative of Article 14 of the Constitution should ordinarily be manifest arbitrariness. 185. Legislative arbitrariness seems to be established on the ground that the object and reason is based on unfounded facts. Different reports of Law Commission while promulgating the Code of Criminal Procedure, 1974 and judgment of Hon'ble Supreme Court on the point, have not been considered. X-LEGISLATIVE ARBITRARINESS 186. Whether the impugned amendment is an instance of legislative arbitrariness, is a question which cropped up during the course of hearing. Whether, the Legislature of the State has deleted the impugned provisions from Section 24 arbitrarily without taking into account, the relevant material which is necessary for the purpose? 187. Black's Law Dictionary, 9th Edn. By Bryan A. Garner, Editor-in-Chief, defines the word, 'arbitrary' as under: arbitrary, adj. (15c) 1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it lacks substantial support in evidence.-- Clack v. State, Dept. of Public Works, Division of Highways, 80 Cal.Rptr. 274, 275 Cal. App. 2D 743.-- High 113 (4). [Pg. 520] Utah 1948. Arbitrariness is action or ruling not based on reasonable grounds and usually occurs without personal bias against a litigant or his cause, but arbitrariness surrounded by other circumstances may show bias disqualifying judge. Utah Code 1943, 20-6-1; Const. Art. 8, 13.--Haslam v. Morrison, 190 P.2d 520, 113 Utah 14.--Judges 49 (1). [Pg 520] Arbitrary act Cal. App. 2 Dist. 1989. An arbitrary act is one done without any apparent reason therefor.--Verdugo Hills Hospital, Inc. v. Department of Health, 152 Cal. Rptr. 263, 88 Cal. App. 3D 957.--Const Law 2513. [Pg 541] Cal. App. 2 Dist. 1947. An arbitrary act' or decision is one that is arrived at through the exercise of will or by caprice, one supported by mere option or discretion and not by a fair or substantial reason.--Bedford Inv. Co. v. Foib, 180 P.2d 361, 79 Cal. App.2d 363. [Pg 542] 188. In view of the aforesaid definition, the impugned amendment seems to be irrational, capricious and is not done in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aims and object of the impugned amendment is based on unfounded facts. It is also against the original scheme, object and reason of Code of Criminal Procedure, 1974. The amendment has also been done in contravention of recommendation made by the different Law Commissions which were the basis of promulgating the new Code of Criminal Procedure, 1974. The observation made by Hon'ble Supreme Court in Km. Shrilekha Vidyarthi (supra), has also not been considered. There appears to be no nexus with the object sought to be achieved. Hence, impugned amendment suffers from voice of arbitrariness, and it is irrational and hit by Article 14 of the Constitution. 192. In the case of K. Shyam Sunder (supra), Hon'ble Supreme Court ruled that a statute may be declared unconstitutional, in case it violates fundamental rights enshrined in Part-III of the Constitution. In case it is declared unconstitutional, then it shall be still born and void, to quote relevant portion as under: 25. In Behram Khurshid Pesikaka v. State of Bombay AIR 1955 SC 123; and Mahendra Lal Jaini v. State of Uttar Pradesh Ors. AIR 1963 SC 1019, this Court held that in case a statute violates any of the fundame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution, such Act can be described as void ab-initio meaning thereby unconstitutional, still born or having no existence at all. In such a situation, the Act which stood repealed, stands revived automatically. (See: Behram Khurshid Pesikaka (Supra); and Mahendra Lal Jaini (Supra) 44. In Harbilas Rai Bansal v. State of Punjab Anr. AIR 1996 SC 857, while dealing with the similar situation, this Court struck down the Amending Act being violative of Article 14 of the Constitution. The Court further directed as under: We declare the abovesaid provision of the amendment as constitutionally invalid and as a consequence restore the original provisions of the Act which were operating before coming into force of the Amendment Act. (Emphasis added) 45.Thus, the law on the issues stands crystallised that in case the Amending Act is struck down by the court for want of legislative competence or is violative of any of the fundamental rights enshrined in Part III of the Constitution, it would be un-enforceable in view of the provision under Article 13(2) of the Constitution and in such circumstances the old Act would revive, but not otherwise. This proposition of law is, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The impugned amendment is contrary to the object and scheme of the Code of Criminal Procedure, 1973. Hence also, it suffers from vice of arbitrariness. (7) The impugned amendment is hit by the proviso of Clause (2) of Article 254 of the Constitution of India and repugnant to Section 25-A of CrPC. Both cannot stand together inasmuch as, following one, will make the other ineffective. (8) The purpose of Section 25-A of CrPC is to make prosecuting branch independent from the Government to optimum level. That is why even Special Counsel appointed under sub-section (8) of Section 24 has been placed under the Directorate of Prosecution. (9) The impugned amendment is also not sustainable being enacted without taking into account the judgment of Hon'ble Supreme Court in the case of Km. Shrilekha Vidyarthi (supra) which was necessary in the light of the law laid down by Hon'ble Supreme Court in the case of (2008)5 SCC 1 P. Venugopal v. Union of India. (10) Reliance placed by the Government on the report of an Additional District Sessions Judge ignoring the report of two other Additional District Sessions Judges seems to be exceeding of jurisdiction. While rejecting the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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