REYASAT ALI KHAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner herein has challenged the legality and validity of the two orders, Annexures 1 and 2, dated 22nd April,1993 and 29th July, 1993 respectively, whereby respondent No. 5 herein was appointed initially as Public Prosecutor Incharge on temporary basis-vide Annexure-1, and hereafter appointed as the public prosecutor for the district of Bhagalpur for a period of three years with effect from the date on which he assumed charge as Public Prosector Incharge-vide Annexure-2

(2.) The challenge to the appointment of respondent No. 5 is mainly on two grounds Firstly, it is contended that the District Magistrate in consultation with the District Judge of Bbagalpur did not include the name of respondent No 5 in the panel of names of persons, who, in his opinion were fit to be appointed as Public Prosecutors and therefore, the State Government could not, in view of the provisions of Section 24 (5) of the Code of Criminal Procedure appoint respondent No. 5 as the Public Prosecutor for the district of Bbagalpur. It is secondly contended that the appointment of respondent No. 5 is mala fide, inasmuch as it is by wav of political patronage, rather than on considerations relevant for the appointment of a public prosecutor under Section 24 of the Code of Criminal Procedure.

(3.) The facts of the case in so far as they are relevant, are not in dispute. The petitioner herein was appointed as the Public Prosecutor for the district of Bhagalpur on ist June, 1985, but even though his tenure came to an end after three years, as required, he performed the duties of that office till 24th April, 1993, when Annexure-1 was issued. A letter was addressed to the District Magistrate, Bhagalpur by the Secretary Incharge, Department of Law of the Government of Bihar dated 22-4-1993 bringing to the notice of the District Magistrate that the term of appointment of the present Public Prosecutor bad come to an end in June, 1988. The Government had decided to appoint respondent No. 5. Sri Md Wasi Khan, Advocate, an Additional Public Prosecutor, to take charge of the post of Public Prosecutor till a regular Public Prosecutor was appointed for the district. The appointment of the petitioner, who was then functioning as a Public Prosecutor was to come to an end automatically with effect from the date on which respondent No. 5 took charge of the office of Incharge Public Prosecutor. The facts which preceded the issuance of Annexure-1 are as follows : By letter dated 9th July. 1990 the Secretary of the Department of Law wrote to the District Magistrate, Bhagalpur, intimating that the Government proposed to appoint public prosecutor for the district of Bbagalpur, and in that connection it bad decided to obtain the recommendation of the local authorities recommending the names of 11 advocates for appointment to the post of Public Prosecutor. In view of this decision it was not possible to make an appointment on the basis of the earlier recommendation. The District Magistrate was, thereafter, requested to recommend the names of 11 candidates with their biodata after consultation with the District and Sessions Judge. The District Magistrate was also required to give his clear opinion with regard to the ability, industry, reputation and prestige at the Bar of the persons whose names were recommended. The aforesaid communication has been annexed as Annexure-4 to the writ petition. The Additional Secretary, Government of Bihar also wrote to the District and Sessions Judge, Bhagalpur, to submit his praposal to the District Magistrate, Bhagalpur, so that the District Magistrate could make his recommendation to the Government for appointment of a Public Prosecutor The District Judge, Bhagalpur, by his letter dated 30th March, 1991, addressed to the District Magistrate. Bhagalpur (Annexure-6) suggested a panel of 11 names for appointment of Public Prosecutor in order of preference, keeping in view the guidelines given from time to time. Prom the aforesaid letter it appears that the name of the petitioner was recommended at serial No. 1 in order of preference The name of respondent No. 5 does not find place in the list submitted by the District and Sessions Judge. Bhagalpur. After receiving the panel of 11 names from the District and Sessions Judge, Bbagalpur, the District Magistrate, Bhagalpur by his letter dated 13-4-1991 (Annexure-7) recorded his agreement with the recommendation of the District and Sessions Judge, and forwarded the said panel to the State Government along with the biodata of the persons recommended.