Point of Law: Public prosecutor, and then the trial court's scrutiny, both play an essential role in safeguarding the accused's right to fair investigation, when faced with the might of the state's police machinery.

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-A145598, 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 Pradesh and trans