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Synopsis

The Supreme Court has on January 29, 2025 said the public prosecutors and government law officers should be appointed solely on merit, instead of on political considerations, or by showing favouritism and nepotism.

A bench of Justices J B Pardiwala and R Mahadevan held the Haryana government liable to pay Rs 5 lakh each as compensation to three appellants, in their 60s and 70s, for their unlawful and unjust imprisonment for over three months in a murder case, 26 years after the incident and 20 years after their acquittal, due to failure of the public prosecutor to properly assist the High Court.

The court here set aside the High Court's judgment of August 27, 2024, on appeals filed by Mahavir and others, saying, "It is as clear as a noonday that the High Court committed an egregious error in reversing the acquittal and passing an order of conviction in exercise of its revisional jurisdiction and that too without affording any opportunity of hearing to the appellants herein."

The High Court passed the judgment on a revision application filed in 2006 by father of the deceased, though no notice was served upon the appellants and the revisionist too had died in December, 2023. The High Court appointed a legal aid counsel and another counsel to assist and delivered its judgment on August 27, 2024.

Dealing with challenge to the High Court's order, the apex court pointed out that the 2009 amendment made in Section 372 CrPC by adding a proviso created a substantive right of appeal for the victim but this is not retrospective in nature.

"A statute which creates new rights shall be construed to be prospective in operation unless otherwise provided, either expressly or by necessary implication. It is, therefore, clear that in the year 2006 when the judgement of acquittal was passed, the de facto complainant had no right to challenge the impugned order passed in 2006 by way of filing the appeal. In such circumstances sub section (5) of Section 401 CrPC has no application in the present case," the bench said.

Notably, the state government has not filed appeal against the acquittal of the appellants by the trial court.

The appellants counsel contended no right of appeal was available to the victim in law at the time the revision was filed and the High Court passed the judgment in violation of statute, principle of natural justice and the constitutional right to get represented through a counsel of choice.

The State counsel submitted in the interest of justice, the High Court can treat the application for revision as an appeal. Although the proviso to Section 372 CrPC was introduced sometime in 2009, i.e., after the judgment of acquittal yet the High Court could have given retrospective effect to the proviso to Section 372 and should have treated the revision application filed by the de facto complainant as an appeal under Section 372 of the CrPC.

In the case, the court noted the most distrubing feature was that the Public Prosecutor instead of assisting the HC Judges in the right direction by pointing out the correct position of law went to the extent of seeking the capital punishment. It is a different thing that the High Court rejected the prayer of the Public Prosecutor, it said.

"Such is the standard of the Public Prosecutors in the High Courts of the country. This is bound to happen when the State Governments across the country appoint AGPs and APPs in their respective High Courts solely on political considerations. Favouritism and nepotism is one additional factor for compromising merit," the bench said.

The court stressed this judgement is a message to all the State Governments that the AGPs and APPs in respective High Courts should be appointed solely on the merit of the person.

"The State Government owes a duty to ascertain the ability of the person; how proficient the person is in law, his overall background, his integrity etc," the bench said.

The court pointed out the importance of the office of the Public Prosecutor cannot be overemphasized.

"The Public Prosecutor must be a person of high merit, fair and objective, because upon him depends to a large extent the administration of criminal justice. The office of the Public Prosecutor is a public office and the incumbent has to discharge statutory duties. The person appointed as Public Prosecutor must, therefore, be one who is not only able and efficient, but also enjoys a reputation and prestige which satisfy his appointment as a Public Prosecutor," it said.

The court said the duty of the prosecutor is to assist the Court in reaching a proper conclusion in regard to the case which is brought before it for trial. The prosecutor has to be fair in the presentation of the prosecution case. He must not suppress or keep back from the court evidence relevant to the determination of the case.

"Judges are human beings and at times they do commit mistakes. The sheer pressure of work at times may lead to such errors. At the same time, the defence counsel as well as the Public Prosecutor owes a duty to correct the Court if the Court is falling in some error and for all this, we hold the State Government responsible. It is the State Government who appointed the concerned Public Prosecutor. The State Government should be asked to pay compensation to the three appellants herein," the bench said.

 

 

Case Title (Download Judgment): Mahavir & Ors Vs State of Haryana