JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed for quashing the order dated 31/8/2005 (Annex-1) by which petitioner's continuation as a Panel (Lawyer (Criminal) has been stopped under the garb of rejecting the application for renewal of his term.
2. The facts and circumstances giving rise to this case are that vide order dated 20/10/1982 (Annex-2) petitioner's name was included in the name of Panel Lawyer (Criminal) by the District Magistrate and since then he had been working continuously under the supervision and guidance of the Public Prosecutor, District Basti and now he is not being permitted to continue in view of the aforesaid impugned order. Hence this petition.
3. Shri U.N. Sharma, learned Senior Counsel appearing for the petitioner has submitted that the petitioner had been appointed by the District Magistrate as a Panel Lawyer (Criminal) vide order dated 20/10/1982 and he was kept in a reserved category to meet out the exigency of the work/Petitioner's appointment was in pursuance of the Government Order dated 09/7/1979 and as there was no provision of renewal of any Panel Lawyer, the order impugned is liable to be quashed and the petitioner is entitled to continue as a Panel Lawyer (Criminal).
4. On the other hand, learned Standing Counsel has vehemently opposed the petition submitting that there is no provision for such an i appointment nor the Government is competent to issue any Order which may be in contravention of the provisions contained in Sections 24 and 25 of the Criminal Procedure Code, 1974 (hereinafter referred to as Cr.P.C.). Even if the Government has issued certain Order that is liable to be ignored being in contravention of the statutory provisions, Neither the Cr.P.C. nor the U.P. Legal Remembrancer Manual (hereinafter called the Manual) permits such appointment, therefore, the petition is liable to be dismissed.
5. We have considered the rival submissions made by learned counsel for the parties and perused the record.
6. The issue involved herein is of paramount Importance and therefore requires to be considered in detail.
7. The mandatory requirement made under Section 24 Cr.P.C. for making appointment of Public Prosecutor in the District Court is that the District Magistrate shall prepare a list of candidates in consultation with the Sessions Judge who, in his opinion, are fit to be appointed as Public Prosecutors. The District Magistrate shall submit that panel to the State for making the appointments. The District Magistrate is not empowered to delete a i name suggested by the Sessions Judge or to add name therein unless the name so suggested by the Sessions Judge does not fulfil the requirement of eligibility i.e. having minimum 7 years experience as an advocate. Sub-section (8) of Section 4 Cr.P.C. empowers the Central/State Government to appoint Ian advocate having ten years' experience as a Special Public Prosecutor for the purpose of any case or class of cases,
8. Therefore, an Advocate who fulfils the eligibility may be appointed as a Special Public Prosecutor for the purpose of conducting trial in a particular case or class of cases. Even the State has no power to appoint the Special Public Prosecutor in any case at its whims or there must be sufficient reasons, which should be recorded in writing for making such an appointment.
9. The position remains undisputed that the complainant's lawyer can merely ;assist the Public Prosecutor by submitting the written arguments as is permissible under Sections 225, 301 and 302 Cr.P.C. The Rajasthan High Court in Bhopal Singh v. State of Rajasthan and Ors., 2001 Cr.L.R. (Raj) 161, upheld the validity of Sections 225, 301 and 302 Cr.P.C. wherein the complainant had challenged the validity of the said provisions on the ground that he had a right to engage a counsel of his choice to conduct the prosecution Of the accused and not by a Public Prosecutor appointed under a spoiled system. The Court rejected the said contention, upholding the validity of the said provisions, observing that it did not violate the mandate of Article 21 of the Constitution as offence committed by an accused primarily was offence against the State and not against an individual and the submission that Article 21 includes the right to prosecute the accused by the complainant because he had suffered the loss or injury, was rejected.
10. Public Prosecutor holds a "Public Office". The primacy given to him under the Scheme of Cr.P.C. has a "special purpose". Certain professional, official obligations and privileges are attached to his office. His office may also be I termed as an office of profit as he remains disqualified to contest the election so long he holds the office though permanency is attached to the office and not to the term of his office. His duties are of public nature. He has an "independent and responsible character". He holds the public office within the scope of a "quowarranto proceedings". Public Prosecutor is not a part of investigating agency but is an "independent, statutory authority". He performs statutory duties and functions. He holds an office of responsibility as he has been enclothed with the power to withdrew the prosecution of a case on the directions of the State Government (Vide Mahadeo v. Shantibhai ; Kanta Kathuria v. Manak Chand Surana, ; Madukar G.E. Pankaker v. Jaswant Chobbildas Rajani and Ors., ; Mundrika Prasad Sinha v. State of Bihar, ; K.C. Sud v. S.G. Gudimani, (1981) 2 Cr. L.J. 1779; Mukul Dalai v. Union of India, ; Hintendra Vishnu Thakur and Ors. v. State of Maharashtra, ; Rabindra Kumar Nayak v. Collector, Mayurbhanj, Orissa, and State of U.P. v. Johrimal, ).
12. Sections 199(2), 225, 301(1), 302, 308, 321, 377 and 378 are some of the provisions in the Cr.P.C. which confer a special position upon the Public Prosecutor. From the spirit contained in the scheme of the Cr.P.C. it is clear that it is the duty of the Public Prosecutor to support prosecutions initiated by the State. Trial before a Court of Session has to be conducted by the Public Prosecutor are required under Section 225 of the Code, Cases instituted -on a police report are intended also to be handled by a Public Prosecutor.
13. In Ram Chandra Joshi v. State of Rajasthan, (2001) RLW 455, the Rajasthan High Court held as under"
"...engagement of an advocate as Public Prosecutor is not merely a professional engagement. Even if he does not hold a civil post under the State, he carries the responsibility and privilege of the public office of great public importance. Neither his appointment nor his removal can be made on the sweet will of the Government and [rather the same are governed by public Interest, which has always been a paramount consideration in public administration."
14. While explaining the importance of the role of the Public Prosecutor in withdrawal of the criminal case on the directions of the State, the Hon'ble Apex Court has always envisaged an independent and impartial status for him without being guided by the wishes of the executive. (Vide R.K. Jain v. State, ; and Shoe Nandan Paswan v. State of Bihar and Ors., ).
15. Even in a given case where the State Government has issued direction to, withdraw a case, the Public Prosecutor has to apply his mind and consider the se on merits to take an independent decision rather to work as an agent of the ate. The Public Prosecutor acts as a limb of judicative process. He must work ; a minister of justice assisting the State in administration of justice and he is of a representative of any party. He is bound to assist the Court with his fairly considered view and the Court is entitled to take benefit of fair exercise of his actions as the primary responsibility of prosecuting cognizable offences is on le executive authorities, the Public Prosecutor, though an executive officer in larger sense also holds the office of the Court (Vide State of Bihar v. Ram Naresh, ; and Subhash Chander v. State, ). In Bhopal Singh (supra) the Court observed as under:-
"Thus, in all prosecutions, the State Is the prosecutor and a proceedings is always treated as proceeding between the State and the accused. The complainant has no independent right to have guilty persons punished. It is felt necessary in the larger public interest to save the people from prosecution by a private party. Once the offence is committed, it is not against an individual but is against the entire society.... This is why justice is represented by scales of sword. The Society has realised that the privilege of the prosecution should be of the State alone because it is neutral interceptor as it never losses and never wins. The Court calls for expertise and hence the conduct of the prosecution is entrusted to the Prosecutors appointed by the State. This will save innocent persons from vexatious prosecution and also harassment during the trial. Complainant has also been given limited fight to speak during trial by way of submitting I written arguments under Section 301(2) and assist the Public Prosecutor through private counsel with permission of the Court if the facts so permit under Section 302 Cr.P.C. Thus, the foundation of Sections 225, 301 and 302 Cr.P.C. is a well-reasoned public policy. A balance is struck between public interest and private interest that while keeping the management of the prosecution with Public Prosecutor, the provision is : made to take care of complainant's view, on legal and factual aspect."
16. In Shiv Kumar v. Hukam Chand and Anr., , the Hon'ble Supreme Court observed as under:-
"A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting the prosecution must be couched in fairness not only to ... the Court and to the Investigating Agency but to the accused as well. If an accused is entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the Court, if it comes to his knowledge. A private counsel if allowed free hand to conduct prosecution would focus on bringing the case to conviction. That is a reason why Parliament Applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor."
17. While deciding the said case, the Hon'ble Supreme Court placed reliance upon the judgment of the Full Bench of this Court in Queen-Empress v. Durga, ILR 1894 All.84, wherein it had been observed that the Public Prosecutor should bear in mind that he has to act and conduct the case for crown fairly and he should not obtain an unrighteous conviction. He has to see that justice is indicated.
18. In Medichetty Ramakishan and Ors. v. State of Andhra Pradesh, , the Andhra Pradesh High Court observed as under:-
"The principle that Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction is based upon high policy and as such Courts should be astute to suffer no inroad upon its integrity. Otherwise there Will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party... unless, therefore, the control of the Public Prosecutor, the prosecution of private party may degenerate into legalized means for wreaking private vengeance."
19. In re Bhupali Malliah and Ors. v. State of Andhra Pradesh and Ors., , a similar view had been expressed observing that it is undesirable and improper that "a Public Prosecutor should be allowed, to sit back, handing over the conduct of the case to a counsel, however eminent he may be, briefed by the complainant in the case".
20. In Prabhu Dayal Gupta v. State 1986 Cr. L.J. 383, the Delhi High Court observed that the Public Prosecutor, has to be fair in presentation of the. prosecution case. He must present a complete picture of the prosecution case. He must present a complete picture and not 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. -
21. In Abdul Khader Musliar v. Government of Kerala and Ors., 1993 Cr. L.J. 1249, Justice K.T. Thomas (As his Lordship then was) explained the scheme of the Cr.P.C. considering earlier judgments of the various Courts including Seethi Haji v. State of Kerala, 1986 Ker. L.T. 1274; and P.G. Narayankutty v. State of Kerala, 1982 Cr.L.J. 2085 and held that a Special Public Prosecutor is not to be appointed in ordinary circumstances. Appointment of Special Public Prosecutor on the ground that the accused in a murder case had engaged a leading lawyer to defend them without conducting enquiry or without calling for remarks of any other officer, was found bad in law. Engagement of a leading criminal lawyer was found hardly a sufficient ground to make it a special situation warranting appointment of a Special Public Prosecutor.
22. There must be special circumstances for making such an appointment. The Special Public Prosecutor cannot be appointed with a view to secure conviction at all costs. Such a Public Prosecutor can be appointed only and only when public interest demands it and not to vindicate the grievance of a private person, such as close relation of the deceased.
23. In Rajendra Nigam v. State of Madhya Pradesh and Ors., 1998 Cr.L.J. 998, the Madhya Pradesh High Court considered various decisions including Vijay Valia v. State of Maharashtra, 1986 Cr. L.J. 2093; Sunil Kumar v. State of M.P., 1992 M.P.L.J. 772 and held that if a Special Public Prosecutor is appointed at the expenses of the private litigant, he would be a persecutor and not a Public Prosecutor and in such circumstances, the Court should also; look into the order passed by the State for the reason that even if the Government has a power to i appoint a Special Public Prosecutor under Sub-section (8) of Section 24 CrPC, it should not exercise the power arbitrarily.
24. In Poonamchand Jain v. State of M.P. and Ors., 2001 Cr.L.J. 3113, the Madhya Pradesh High Court again reiterated that unless there is sufficient material showing that there was special reason to appoint a Special Public Prosecutor namely that the Public Prosecutor was incompetent to conduct the trial or other aspects disqualifying him to fulfil the duty, the State Government should not make appointment of a Special Public Prosecutor merely on the application of the complainant or any close' relative of the deceased or victim that he was willing to bear the expenses. It cannot be justifiable and reasonable ground for appointment of Special Public Prosecutor and If such an appointment is made it is liable to be quashed.
25. In Dilip Bhai Chhota Lal v. State of Gujarat, (1971) 12 Guj. L.R. 999, the Gujarat High Court held that leaving remuneration of the Special Public Prosecutor appointed by the State to be settled by him with the complainant would not vitiate the order of appointment. Similar view has been taken in Vijay Valia (supra) and in Ajay Kumar v. State and Ors., 1986 Cr.L.J. 932 by Delhi High Court.
26. In Phool Singh State of Rajasthan, (1993) 1 RLW 402, the Rajasthan High Court held that the conduct of a Special Public Prosecutor appointed by the State under Section 24(8) Cr.P.C. and paid by the private party does not affect his capacity and ability to perform his role as a Public Prosecutor, because to accept such a chanalised prosecution will invalidate all private prosecutions. By no stretch of imagination, it can be assumed that such a Public Prosecutor will act as a de facto complainant and will not be impartial as a Public Prosecutor appointed and paid by the State and thus in such cases, no interference is warranted in a writ jurisdiction.
27. In Mukul Dalai (supra), the Hon'ble Supreme Court held that application for appointment of a Special Public Prosecutor may not be allowed automatically making the said appointment and it would be contrary to the spirit of the scheme of Cr.P.C. There may be cases where a complainant may have taken a proceeding to victimise his opponent. If in such a case, the State concedes to the request for appointment of a Special Public Prosecutor, there will be travesty of justice. Without screening on the basis of guidelines prescribed or to be prescribed, the services of a Special Public Prosecutor should not be made available to a private complaint. The primacy given to the Public Prosecutor under the scheme of the Code has a special purpose. The application for making such appointment should be properly examined by the authority and only when he is satisfied that the case deserves support of a Public Prosecutor or a Special Public Prosecutor that such a person should be appointed to be incharge of the case. Ordinarily, fee of so appointed Public Prosecutor must be borne out of State funds, but there may be some special cases where the Special Public Prosecutor's remuneration may be collected from the private source, in such cases, fee should either be deposited in advance or paid to prescribed State Agency from where the Special Public Prosecutor would collect the same.
28. In T.N. Nagraju v. State of Karnataka, JT (2001) 2 SC 64, the Hon'ble Supreme Court quashed the direction given by the High Court awarding additional remuneration to the Additional Public Prosecutor observing as under-
"How or why such a direction can be made has not been explained in the judgment. Criminal jurisdiction is not for awarding largesse to any one, much less to the public prosecutor. Hence, the said direction cannot be sustained as it would create a very unwholesome precedent.... We deprecate the said practice which should be nipped in the bud itself."
29. In R. Sarala v. T.S. Velu, AIR 2000 SC 1731, the Apex Court did not approve the involvement of the public prosecutor in the investigation observing that his "involvement in investigation in injudicious as well as pernicious in law." In Navinchandra N. Majithia v. Astate of Meghalaya and Ors., , the Hon'ble Supreme Court disapproved the direction to obtain financial assistance from private parties for meeting the expenses required for conducting the investigation. The Court observed as under:-
"It is an acknowledged reality that he who pays the piper calls the tune. So he would call the shots. Its corollary is that somebody who incurs the cost of anything would normally secure its central also.... Financial crunch of any State Treasury is no justification for allowing a private party to supply funds to the police for conducting such investigation.... Such funding by interested private parties would vitiate the investigation contemplated in the Code. A vitiated investigation is the precursor for miscarriage of criminal justice."
30. Thus, it is evident from the above that as the crime is committed against the society/State, though individual is the victim, State has the sole responsibility to investigate and bear the burden of investigation and trial.' It is the prime concern of the State to protect the society from the offences and to provide a fair procedure for investigation and trial. For the purpose of trial the appointments of Public Prosecutors and Additional Public Prosecutors are to be made. For that purpose, the provisions of Chapter VIII of the Manual are applicable. Paragraph 8.01 thereof provides for maintaining the list of Panel Lawyers conducting of Criminal and Civil cases in the District by the District. Magistrate. Paragraph 8.02, provides for procedure for preparing the Panel, according to which the lawyers fulfilling the eligibility may apply by giving their willingness to consider their inclusion in the Panel and for recommending their names for appointment to the Legal Remembrances to the District Judge! The District Judge shall make his recommendations making particular remarks about the applicant in respect of his character, professional conduct, integrity and suitability. The District Judge shall make the recommendations available to the District Magistrate who shall forward the names to the Legal Remembrancer, but he cannot include any name without the consent of the District Judge. The Legal Remembrancer may make the appointment from the said list only after examining the recommendations of the District Judge and the District Magistrate and once the appointment is made, it shall be a tenure post subject to renewal under paragraph 8.06 of the Manual. This procedure is in consonance with the requirement provided under Sections 24 and 25 Cr.P.C. and [there is no provision either in the Cr.P.C. or in the Manual permitting the District Magistrate to appoint any Panel Lawyer without the recommendations of the District Judge, and the appointment is to be made only by the Legal Remembrancer.
31. Even if there is any Government Order in contravention of the Cr.P.C, it is, to be ignored in view of the judgment of the Hon'ble Supreme Court in Ram Ganesh Tripathi and Ors v. State of U.P. and Ors., , Wherein the Hon'ble Supreme Court has held that if the State Government has passed any order in contravention of the statutory provision, it cannot be taken note of. Though, Shri U.N. Sharma, learned Senior Counsel appearing for the petitioner could not produce the Government Order dated 08/7/1985 to that effect. However, it is submitted that petitioner's appointment was made under the said Government Order, reference of which has been given in the supplementary affidavit. Even if such an order exists that cannot be given effect to and is liable to be ignored as it would amount to conferring a power upon the District Magistrate ignoring the statutory provision and making the appointment without having consultation with the District Magistrate.
32. The State of U.P. vide Act No. 18 of 1991 w.e.f. 16/2/1991 amended the Cr.P.C. omitting the provisions of Sub-section (1), (4), (5) and (6) of Section 24. In Johrimal (supra), the Apex Court considered the scope of the said amendment and held that the manual was not the law within the meaning of Article 13 nor it would fall within the ambit of Article 166(3) of the Constitution and inspite of the deletion of the said provisions, primacy of the opinion of the District Judge shall prevail.
33. In view of the above, we are of the considered opinion that the appointment of the petitioner has not been made in consonance with law, i therefore, there is no obligation on the part of this Court to protect the appointment made under the spoiled system.
34. Be that as it may, the District Magistrate cannot include a name in the Panel of Lawyer without the recommendation of the District Judge. In the instant case, it is fairly conceded by the learned Senior Counsel for the petitioner that I the recommendation of the District Judge had never been made in this regard.
35. In view of the above, petitioner cannot claim any equitable relief in writ Jurisdiction.
36. It is settled legal proposition that writ Court should not quash the order if it revives a wrong and illegal order. [Vide Gadde Venkateswara Rao v. Government of Andhra Pradesh and Ors., ; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and Ors., ; Mallikarjuna Mudhagal Nagappa and Ors. v. State of Karnataka and Ors. ; and Chandra Singh v. State of Rajasthan and Anr, .
37. Interference with the order impugned, would amount to revive the appointment made by the District Magistrate without consultation of the District Judge, therefore, facts of this case do not warrant any interference.
38. We do not find any force in the petition. It is accordingly dismissed.