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HIGH COURT OF HIMACHAL PRADESH
TARLOK SINGH CHAUHAN, CHANDER BHUSAN BAROWALIA, JJ
TARSEM KUMAR – Appellant
Versus
STATE OF HIMACHAL PRADESH – Respondent
CIVIL WRIT PETITION No.1930 of 2022
For the Appellants/Petitioners: SH. ANUP RATTAN
For the Respondents: SH.ASHOK SHARMA, SH. RAJINDER DOGRA, SH. VINOD THAKUR, SH. SHIV PAL MANHANS, SH. BHUPINDER THAKUR, SH. YUDHBIR SINGH THAKUR, SH. RAJAT CHAUHAN, SH. NARESH KAUL, SH. TARUN K. SHARMA
Public prosecutors must act independently, free from political influence, maintaining fairness in trials and ensuring justice for both victims and accused.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 24 - Public Prosecutors’ conduct - The case highlights the unethical conduct of public prosecutors colluding with politicians for transfer orders. Public Prosecutors must maintain detachment and conduct prosecution fairly. Duty to represent the state impartially is emphasized. (Paras 6, 27, 29, 30, 34)
(B) Public prosecutor’s role in criminal trials - The role entails conducting prosecutions fairly without personal bias towards securing convictions, adhering to the principles of justice and truth-seeking. The court outlines expectations of independence, ethical standards, and adherence to law. (Paras 12, 27, 178)
(C) Conduct Standards - The court mandates comprehensive training for newly appointed Public Prosecutors, emphasizing ethics, fairness, and independence in their duties to the public and the justice system. (Paras 30, 34)
Facts of the case:
The petitioner, a Public Prosecutor, alleged that respondent-private respondents engaged unfairly with a local MLA for their transfer orders, implying misconduct. The court noted that the public's trust hinges on public prosecutors' ethical conduct devoid of political affiliations.
Findings of Court:
The court found that both the petitioner and the private respondent failed to exhibit necessary professional ethics and ordered their transfers away from the district while mandating ethical training for all public prosecutors.
Issues: The primary issues addressed include the propriety of transfer orders influenced by external political figures and the ethical responsibilities of public prosecutors in representing the state impartially.
Ratio Decidendi: The court ruled that public prosecutors must act independently, avoiding any external influence or misconduct, ensuring justice and fairness to both the accused and the victims, thus reinforcing the integrity of the judicial process.
Result: Petition disposed of with directions for mandatory training and transfer orders executed based on comprehensive guidelines.
| Table of Content |
|---|
| 1. illustration of public prosecutor misconduct (Para 1 , 2) |
| 2. dispute over transfers and d.o. notes (Para 3 , 4 , 5) |
| 3. role and duties of public prosecutors (Para 6 , 7 , 8 , 9 , 10) |
| 4. fairness in prosecution and independence (Para 11 , 12 , 13) |
| 5. implication of fair trials and procedural fairness (Para 14 , 15 , 16 , 17) |
| 6. right to fair investigation and trial (Para 18 , 19 , 20 , 21 , 22) |
| 7. expected conduct of public prosecutors (Para 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30) |
| 8. policy recommendations for prosecutors' training (Para 31 , 32 , 33 , 34 , 35) |
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-OfÏcial (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-OfÏcial (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-OfÏcials (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 ofÏce Nurpur to ADA ofÏce 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 ofÏce, 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 atmo
