Judicial Analysis Court Copy Headnote Facts Arguments Court observation

HIMACHAL PRADESH HIGH COURT
Tarlok Singh Chauhan and Chander Bhusan Barowalia, JJ.
Tarsem Kumar – Petitioner
versus
State of Himachal Pradesh through
Principal Secretary Home and Ors. – Respondents
Civil Writ Petition No.1930 of 2022
Decided on 6.7.2022

Advocates:
Counsel for the Parties:
For the Petitioner:Sh. Anup Rattan, Advocate
For the Respondent No.1:Sh. Ashok Sharma, Advocate General with Sh. Rajinder Dogra, Senior Additional Advocate General, Sh. Vinod Thakur, Sh. Shiv Pal Manhans, Additional Advocate Generals, Sh. Bhupinder Thakur, Sh. Yudhbir Singh Thakur, Deputy Advocate Generals and Sh. Rajat Chauhan, Law Officer
For the Respondent No.2:Sh. Naresh Kaul, Advocate
For the Respondent No.3:Sh. Tarun K. Sharma, Advocate

IMPORTANT POINT
Role of Public Prosecutors – Working of Prosecutors has to be free from any executive or political interference – Conduct of every Prosecutor should be above reproach – He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, sans political or partisan influences.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 24 – Role of Public Prosecutors – A Public Prosecutor is one, who should necessarily conduct case of prosecution with a sense of impartiality and fairness – It is no part of his obligation to secure conviction of an accused, in any event, or at all costs – Office of Public Prosecutor involves duties of public nature and is of vital interest to public – Public Prosecutor is expected to be scrupulously fair and completely detached without evincing any anxiety while performing his duties – Expected attitude of Public Prosecutor while conducting prosecution must be couched in fairness not only to Court and to investigating agencies, but to accused as well – Prosecutor does not represent investigating agency but represents State. (Paras 7, 10, 11 and 12)
(B) Criminal Procedure Code, 1973 – Section 24 – Role of Public Prosecutors – Working of Prosecutors has to be free from any executive or political interference – Concept of independence of Prosecutors being a wider concept indicates an independent functioning of every Prosecutor free of fear, interference and breaches – Conduct of every Prosecutor should be above reproach – He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, sans political or partisan influences – He should deal with his appointment as a public trust and should not allow other affairs or private interests to be interfered with his official duties, nor, he should administer office for the purpose of advancing his personal ambitions or increasing his popularity – If he compromises with his office, its rippling effects would be both disastrous as well as deleterious – Since, working of Public Prosecutor is intrinsically connected with Court and is not a part of investigating agency and is rather an independent statutory authority, henceforth no Public Prosecutor, Assistant District Attorney and District Attorney shall be transferred on the basis of D.O. Notes and their transfers shall be effected strictly in accordance with Comprehensive Guidelines, 2013, for regulating transfers of employees, that too, only by Administrative authority. (Paras 28 and 31)
Result: Civil Writ Petition disposed of with observations.

ORDER

How some of the Public Prosecutors have over a period of time shamelessly started hobnobbing with some of the politicians to procure and secure orders of transfer of their convenience is best illustrated in the instant case.

2. Both the petitioner as also the private respondent are Public Prosecutors and have at different times procured D.O. Notes from the local M.L.A. for securing their transfers.

3. According to the petitioner, respondent No.3, who is a local M.L.A., issued a Demi-Official (D.O.) Note No. 379104 on 15.03.2022 for transfer of the petitioner at the behest of respondent No.2.

4. On the other hand, the defence of respondent No.2 is that the petitioner vide notification dated 06.08.2018 had been transferred from Nurpur to Dalhousie, but he managed to get his transfer cancelled through Demi-Official (D.O.) Note No. 66623 dated 20.08.2018 issued by the local M.L.A. It is further averred that the petitioner managed his transfer thereafter on 15.01.2020 through three Demi-Officials (D.O.s) Notes in the year 2019 that too in condonation of his short stay against Sh. Bhupinder Chand vide DO No. Secy/CM-17006/2017-VIP-A- 145598, dated 10/07/2019, DO. No. Secy/CM-H0503/2017-DEP-A-189798, dated 10/12/2019, DO.No.Secy/CM/ 17010/2017-VIP-A-190708, Dated 13/12/2019, from ADA office Nurpur to ADA office Kangra under District Attorney, Kangra at Dharamshala. However a very important averment has been made in para-6 of the reply which reads as under:—

“6. That it is important to submit here that the proposal for transfer of petitioner from Nurpur to Kangra (ADA office, where his wife was already ADA) was given by the MLA Sh. Rakesh Pathania, in condonation of short stay against Sh. Bhupinder Chand, who himself was booked under FIR No.110/13 dated 26/04/2013 u/s 452, 147, 149, 353, 332, 506 IPC & 3 Prevention of Damage to Public Property Act in case titled as “State vs. Rakesh Pathania & others”, pending adjudication before the Ld. Court of JMFC, Nurpur. The petitioner being incharge of the prosecution case at that time, procured the DO note from Sh. Rakesh Pathania, who himself was undergoing trial in the said court and managed his transfer at his choice of station with his Wife (Shveta Ji). The act of obtaining DO Note from the person who is facing prosecution, is certainly a misconduct on the part of public servant. So the petitioner has not come before this Hon’ble court with clean hands.”

5. The local M.L.A., who has been arrayed as respondent No.3, has also filed his reply and it shall be apt to reproduce paras-2 to 5 of the reply, which read as under:—

“(2) That replying Respondent is elected public representative and is serving to the people of Nagrota Constituency. It is pertinent to submit here that the husband of Respondent No.2 is working in Dr. RPGMC Tanda as Cardiologist, which falls in Nagrota Bagwan constituency and being public representative of the said Constituency, the replying Respondent often requires help from the husband of respondent No.2 for the emergent treatment and consultation of his constituents. It is pertinent to mention here that Respondent No.2 and her Husband are not may constituents, as there is no political mileage in helping Respondent No.2 but only to serve the poor people of my constituency replying Respondent issued the DO note in favour of Respondent No.2 so that husband of Respondent No.2 can serve the patients in healthy atmosphere.

(3) That in the Month of March when Replying Respondent visited Tanda Medical College to know the requirements of all departments and their needs as well as grievances. The replying Respondent came to know about the health and medical history of Respondent No.2 through her husband Dr. Naresh Rana who made a representation for redressal of grievances before the respondent No.3 and being elected member of the legislative assembly the replying respondent issued DO Note and same has been duly considered by the Hon’ble Chief Minister of Himachal Pr