R.M. Lodha, J.@mdashMr. A.S. Shirsat is a practising Advocate. He practices in the Jalgaon Courts. By means of this Public Interest Litigation, he has raised the grievance concerning the appointment of respondent Nos. 3 to 13 as Government Pleader / Public Prosecutor / Assistant Government Pleader / Additional Public Prosecutor. According to him, the appointment of these persons is arbitrary and merit has been the casualty in appointing them.
2. At the outset, Mr. Ravi Kadam, the Advocate General submitted that insofar as appointment of respondent Nos.4 to 13 as Government Pleader / Public Prosecutor / Assistant Government Pleader / Additional Public Prosecutor is concerned, their tenure has come to an end and the fresh process for the appointment of Law Officers in the concerned areas has started as per the provisions of Maharashtra Law Officers (Appointment, Conditions of Service & Remuneration) Rules, 1984 (for short "Law Officers Appointment Rules"). He also submitted that presently respondent Nos. 4 to 13 have been asked to continue as Government Pleader / Public Prosecutor / Assistant Government Pleader / Additional Public Prosecutor as a stop-gap arrangement until the fresh appointments are made.
3. As regards the appointment of respondent Nos. 4 to 13 we are satisfied that the grievance raised by the petitioner does not need to be examined by us any further.
4. The controversy centres around the appointment of respondent No. 3 (Shri Ujjawal Nikam) as Government Pleader / Public Prosecutor, Jalgaon, and in some cases as Special Public Prosecutor.
5. Insofar as the appointment of Shri Ujjawal Nikam as District Government Pleader and Public Prosecutor, Jalgaon is concerned, we find from the available material that by the order dated 30th July, 1999, he was appointed as District Government Pleader in the District of Jalgaon. By subsequent Notification dated 8th August, 2001, his appointment as District Government Pleader and Public Prosecutor, Jalgaon was continued until further orders. On 31st August, 2001, the District Magistrate, Jalgaon forwarded the list of 39 applicants to the District & Sessions Judge, Jalgaon for the consideration of the appointment of any of these candidates as District Government Pleader and Public Prosecutor. The District & Sessions Judge, Jalgaon forwarded his comments to the District Magistrate, Jalgaon on 15th September, 2001. After the process of consultation was over, on 27th March, 2002 Shri Ujjawal Nikam was appointed as District Government Pleader and Public Prosecutor Jalgaon vide Notification dated 27th March, 2002. The material indicates that pursuant to the advertisement published on 4th July, 2001 for the appointment of District Government Pleader and Public Prosecutor, 67 applications were received from the Advocates. Out of 67 applications, 47 applications were for the post of District Government Pleader and 20 applications were for the post of Public Prosecutor. Upon scrutiny of 67 applications, 39 applicants were found to be suitable by the District Magistrate and the said list was forwarded to the District & Sessions Judge, Jalgaon for his comments on 31st August, 2001 as indicated above. The District & Sessions Judge found that most of the 39 applicants had never conducted civil or criminal matters before him. He submitted his comments about 7 candidates only. Out of these 7 candidates, the District & Sessions Judge commented that 5 candidates do not deserve to be considered. Two candidates remained, one the respondent No. 3 and the other Shri M.D. Mujumdar. The District & Sessions Judge opined that name of M.D. Mujumdar be considered but with regard to Shri Ujjawal Nikam, he opined that his name ought to be considered.
6. It would be, thus, seen that the appointment of respondent No.3 as District Government Pleader and Public Prosecutor, Jalgaon cannot be said to suffer from any flaw or infirmity.
7. Mr. M.P. Vashi, the counsel for the petitioner submitted that even if the appointment of Shri Ujjawal Nikam is proper as District Government Pleader and Public Prosecutor, Jalgaon, his appointment as Special Public Prosecutor in large number of cases is not only illegal but also based on extraneous considerations like caste etc. He would submit that huge payment towards remuneration and hotel expenses has been made by the State Government to favour him. He referred to the information procured by the petitioner from the State Government under the Right to Information Act showing that for the cases conducted by Shri Ujjawal Nikam as Special Public Prosecutor for the period from 1999-2000 till 24th March, 2006, payment of Rs. 50,27,296/-has actually been made to him out of Rs. 52,67,358/-payable to him. He also relied upon the Division Bench judgment of this Court in the case of Sushil Hiralal Chokhani and Ors. v. State of Maharashtra 2005 (2) BCR 654 to buttress his argument that the appointment of Shri Ujjawal Nikam as Special Public Prosecutor is not in accord with law.
8. On 8th September, 2006, Balasaheb Kisan Raskar, Under Secretary, Law & Judiciary Department, Mantralaya has filed the Affidavit on behalf of the State Government. It is stated that the orders appointing Shri Ujjawal Nikam as Special Public Prosecutor have been passed by the Remembrancer of Legal Affairs after taking into consideration the nature of the case, the gravity of the matter and the public interest involved. According to him, Shri Ujjawal Nikam has handled many sensitive and important matters successfully and taking into consideration his reputation and the legal acumen it was thought fit that he be appointed as Special Public Prosecutor in those matters. It is also stated that in most of the cases, he has been appointed as Special Public Prosecutor under Rule 21 of the Law Officers Appointment Rules and in about two cases, he has been appointed under Rule 22 of the said Rules. The allegation that any unjustifiable payment has been made to Shri Ujjawal Nikam is stoutly denied in the said affidavit and it is stated that the payment of about Rs. 50,27,296/- has been made to him during the period of 7 years and there are 36 such payments including payment for hotel charges.
9. Chapter III of the Law Officers Appointment Rules, inter alia, deals with the engagement of Special Public Prosecutors. Rules 21 and 22 thereof read thus:''
21. Appointment of Special Public Prosecutor -(1) The Remembrancer of Legal Affairs shall appoint under Sub-section (8) of Section 24 of the Code of Criminal Procedure, any person, who has been in practice as an advocate for not less than ten years, as a Special Public Prosecutor on behalf of the State to conduct any criminal case or class of cases in the High Court or subordinate court. The proposal to that effect shall be made to him either by the District Magistrate, Commissioner or Police, Public Prosecutor or the Government officer concerned, through his administrative department.
2) The provisions of Clauses (a) and (b) of Sub-rule (2) of Rule 18 and Rule 20 shall, mutatis mutandis, apply to the appointment of a Special Public Prosecutor.
22. Engagement of Special Counsel or Special Public Prosecutor on the request of private parties -If in any case, civil or criminal, a request is made by any private party, interested in the case, for the appointment of its own advocate as a Special Counsel or Special Public Prosecutor, as the case may be, on the condition that the payment of fees of such advocate will be borne by that party, the Remembrancer of Legal Affairs may, after considering such case on merits, appoint such advocate for that particular case or cases.
10. For the appointment of Special Public Prosecutor under Rule 21 to conduct any criminal case or class of cases in the High Court or subordinate Court, the proposal has to be made either by District Magistrate or Commissioner of Police or Public Prosecutor or the Government officer concerned through the Administrative Department. The procedure provided in Rule 18(2) Clauses (a) and (b) and Rule 20 has been made applicable for the appointment of Special Public Prosecutor. Accordingly, the proposal for appointment of Special Public Prosecutor needs to state about the nature of the case; the evidence to be brought forward; the reasons for justifying the engagement of a special public prosecutor; the circumstances on account of which the Public Prosecutor concerned cannot be entrusted with the case; the place of hearing of the case; the approximate number of days of hearing the case is likely to take and the rate, the Special Public Prosecutor is proposed to be remunerated, if appointed. While making appointment of an advocate as Special Public Prosecutor, the Remembrancer of Legal Affairs has to duly consider the aforesaid aspects the proposal and the eligibility as prescribed in Section 24(8) Criminal Procedure Code and Rules 21 and 22, as the case may be.
11. We were shown some of the orders whereby the respondent No. 3 was appointed as Special Public Prosecutor. From one of the orders dated 6th August, 2005, it transpires that the proposal for appointment of Shri Ujjawal Nikam was made by the Joint Commissioner of Police (Crime) to the Additional Chief Secretary, Home Department, Bombay in a sensitive case involving a notorious gangster and pertaining to the illegal smuggling and concealment of arms and explosives. The Joint Commissioner of Police proposed his name keeping in view the experience of the respondent No. 3 in such important matters as a prosecutor and forwarded Shri Nikam''s consent to act as prosecutor in the said matter. The proposal for appointment of the respondent No. 3 as Special Public Prosecutor was processed by various authorities of the State Government including the Remembrancer of Legal Affairs. His name was approved. The order of appointment of the respondent No. 3 as Special Public Prosecutor reveals that the payment of fees would be borne by the Home Department according to the Schedule. Thereafter on 24th August, 2005, the Notification was issued u/s 24(8) of the Code of Criminal Procedure appointing Shri Ujjawal Nikam as Special Public Prosecutor for conducting the cases arising out of C.I.D., Mumbai, C.R. No. 31/2005.
12. We considered the Office note processed by the Remembrancer of Legal Affairs in this regard and we find that all aspects as provided in Rule 18(2) were considered substantially. It can not be said that in the appointment of Shri Ujjawal Nikam as Special Public Prosecutor, the procedure prescribed in the Rules has not been followed. It is not that his appointment is without ascribing justifiable reasons and circumstances.
13. The Law Officers Appointment Rules are already in place. It needs no emphasis by us that for the appointment of Special Public Prosecutor u/s 24(8) Criminal Procedure Code, the procedure provided in Rule 18(2) Clauses (a) and (b) needs to be adhered to.
It is all the more necessary to follow the said procedure to obviate such controversy in future. The Remembrancer of Legal Affairs shall do well in ensuring that the proposals for the appointment of Special Public Prosecutor and Special Counsel mention the requisite information as provided in Rule 18(2) Clauses (a) and (b) and if the proposal lacks such information, send the proposal back with complete information as required. We are also of the view that it would be in fitness of things if the State Government prescribes remuneration payable to such Special Public Prosecutor and also the facilities to which the Special Public Prosecutor may be entitled to. This obviously shall not take away the right of the State Government to agree for payment of higher remuneration or additional facilities to the Special Public Prosecutor, for the reasons so recorded in writing if the facts and circumstances of the case in which such appointment is made so warrant.
14. Though we do not find any merit in the contention of the counsel for the petitioner that there being twenty-five thousand Advocates in the city of Mumbai, there was no justification to hire an Advocate from Jalgaon as Special Public Prosecutor, yet in our opinion, if an Advocate from outside is engaged as Special Public Prosecutor for conducting the case of trial in the City of Mumbai and that is likely to take substantial time, there may not be justification for the State Government to spend on hotel charges; instead adequate Government accommodation must be made available. Insofar as the present case is concerned, we are of the view that payment of Rs. 50,27,296/- made to the respondent No. 3 as Special Public Prosecutor for the period 1999-2000 to 24th March, 2006, the same needs to be thoroughly audited by the external auditor. We are informed that the Accountant General (Audit-I) Maharashtra, Mumbai, shall be right authority for that purpose. We, accordingly, direct the Chief Secretary, Government of Maharashtra to refer the details of the payment made to Shri Ujjawal Nikam as Special Public Prosecutor as per the List at Pages 146-147 for audit to the Accountant General (Audit-I), Maharashtra, Mumbai. The audit report shall be placed before the Court as soon as it is received. We further direct that the objection/s, if any, by the Accountant General (Audit-I) with regard to the payment made to Shri Ujjawal Nikam shall be met by the State Government.
15. Needless to say the audit by the Accountant General (Audit-I), Maharashtra, Mumbai shall be independent. We may record the statement of Mr. K.K. Singhvi, that the respondent No. 3 has no objection to such course of audit of the payment made to him by the State Government as Special Public Prosecutor by Accountant General (Audit-I), Maharashtra, Mumbai.
The Writ Petition is disposed of.
