Friday, January 27, 2023

Madhya Pradesh HC wants to know if a panel lawyer, lacking requisite experience, can appear before HC

The High Court's Jabalpur bench was hearing a PIL filed in 2013 which said junior advocates with very little experience were appearing in serious criminal cases across the state in a direct violation of the CrPC. 

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The Madhya Pradesh High Court has directed the state government to clarify whether a panel lawyer may appear before the High Court, even without having a practice record of a minimum of seven years and without consultation with the High Court, as required under Section 24(1) of the Code of Criminal Procedure.

The Jabalpur Bench of Chief Justice Mohammad Rafiq and Justice Vijay Kumar Shukla on Tuesday asked for this clarification while hearing a PIL filed in 2013 by one Gyan Prakash, alleging that junior advocates with experience of one or two years each are appearing in serious criminal cases across the state, which is a direct violation of the CrPC.

Advocate Siddharth R Gupta, appearing for the High Court, submitted that this matter has remained pending before the High Court for quite some time and the practice of engaging panel lawyers to appear before the high court in criminal matters even without the requisite experience of seven years is being wrongly followed. The State Government should comply with the requirement of Section 24(1) and Section 24 (7) of CrPC before authorising any Advocate to appear as Public Prosecutor before the High Court.

Swapnil Ganguly, Deputy Advocate General, submitted that after the change of regime, a new notification under Section 24(1) of CrPC was issued on May 18, 2020 which he shall file along with up-to-date details and further progress in the matter.

The Court directed the State to clarify its stand on the following:

(1) Whether one Public Prosecutor is appointed for each Court in all districts of the State to attend the Criminal matters and if not whether multiple number of Courts are assigned to one available Public Prosecutor and if yes, give the details thereabout?

(2) As to how many posts in the cadre of Additional District Prosecution Officers, District Prosecution Officers and Deputy Director (Prosecution) are lying vacant in the State.

(3) Whether the promotions may not be granted against the unfilled posts of the quota of promotion in the cadre of the District Prosecution Officers and Deputy Director (Prosecution) to the extent not affected by order of the Hon’ble Supreme Court, with regard to which there is no dispute?

(4) Can the State Government not consider appointing Additional District Prosecution Officers/District Prosecution Officers on retainership basis for fixed duration against unfilled posts of Public Prosecutors?

(5) Whether a Panel Lawyer may appear in the Court before the High Court in criminal matters like Criminal Appeals, Bail Applications, Criminal Revisions, application for suspension of sentence, MCRCs etc. even without having practice of minimum of seven years and without the consultation with the High Court as required under Section 24(1) of Cr.P.C.?

(6) How can appointment on contract basis without recourse to Section 24(4) of Cr.P.C. on the basis of panel proposed by the District Magistrate in consultation with the Sessions Judge particularly when Section 24(5) of CrPC provides that no person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4) of Section 24 of CrPC?

The Bench also directed the Central Government to file the report with regard to compliance of Section 24(1) and Section 24(4) of CrPC, as to whether the Advocates who appear on behalf of the agencies like the Central Bureau of Investigation, Enforcement ² etc. before High Court and courts subordinate thereto, are appointed by process of consultation with the High Court or Sessions Judge, as the case may be, in terms of Section 24(1) and 24(4) of CrPC, respectively.

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The matter is fixed for July 26 hearing. On January 10, 2014, the High Court passed a detailed order for creation of the Directorate of Prosecution in terms of Section 25-A of the Code of Criminal Procedure. Thereafter, on August 23, 2017, the MP High Court had disapproved the practice of appointment of Public Prosecutors on contract basis and categorically held that it cannot be a post for appointment on contract basis as such the post is pivot for the administration of justice.

When the matter was listed before the High Court on November 29, 2019, the then Advocate General appeared and submitted that on 07.01.2019 a Gazette notification has been published in terms of Section 24 sub-section (1) of the Code of Criminal Procedure. Petitioner controverted the statement of the Advocate General that a gazette notification has been published on 7th January, 2019 in terms of Section 24 sub-section (1) of the Code of Criminal Procedure.

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