Court On Its Own Motion vs State
2014 Latest Caselaw 1381 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+   W.P.(CRL) 1549/2009
    COURT ON ITS OWN MOTION                         ..... Petitioner
               Through: Mr. Rajeev K. Virmani, Senior Advocate
                           (Amicus Curiae)
                    versus
    STATE                                           ..... Respondent
               Through: Mr. L.K. Singh, Advocate for Delhi
                           Prosecutor Welfare Association.
                           Mr. Naresh Kaushik, Ms. Aditi Gupta,
                           Advocates for UPSC
                           Mr. P.K. Sharma, Standing Counsel for
                           CBI, Delhi High Court with Mr.Jaideep
                           Tandon and Mr.Rakesh Sharma,
                           Advocates
                           Ms. Zubeda Begum, Standing Counsel
                           for GNCT of Delhi and for Home
                           Department and Law & Justice.
                           Mr. Ashok Aggarwal and Mr.Umesh
                           Singh, Advocates for Intervenor
                           Ms. Meera Bhatia, Advocate for UOI.
                           Mr. Saleem Ahmed, Officiating Standing
                           Counsel for GNCT of Delhi
    CORAM:
    HON'BLE MR. JUSTICE KAILASH GAMBHIR
    HON'BLE MS. JUSTICE SUNITA GUPTA
                         ORDER

%                          14.03.2014
KAILASH GAMBHIR, J. (Oral)

1. Mr. Rajeev K. Virmani, Senior Advocate and Amicus Curiae for

the petitioner has placed on record the suggestions given by him to

improve and strengthen the functioning of the Prosecutors and the

Prosecution Agencies. Learned amicus curiae further submits that he

himself had visited the District Courts Saket, Patiala House Courts,

District Courts Karkardooma to personally see the functioning of these

public prosecutors, the infrastructure facilities and other facilities

available to them in the discharge of their day to day duties. Learned

amicus curiae also submits that vide directions given by this court, the

public prosecutors were provided with the facility of Laptops and

pursuant thereto all the public prosecutors did purchase a Laptop within

the financial limit of Rs.35,000/-, but shockingly they were without any

facility of internet connection or for that matter various legal sites were

also not made accessible. Learned amicus curiae submits that the State

has not even renewed the subscription of Manupatra online journal and

due to this non renewal, these public prosecutors cannot have access to

the same or any other online journal. Mr. Virmani, learned amicus curiae

also submits that one internet connection with the facility of Wi-Fi in

every court complex can sufficiently cater to the needs of all the public

prosecutors and through internet they can have access to all the free sites

of law journals at least. Mr. Virmani, learned amicus curiae also submits

that earlier they used to be provided space in every court of Metropolitan

Magistrate and Session Courts, exclusively meant for public prosecutors

but on his visit this time, he found that no such space is dedicated to the

public prosecutors. Learned amicus curiae also submits that these public

prosecutors have not been able to keep their files in safe custody due to

the paucity of space, and insufficiency of racks or cabinets. He further

states that for want of proper safe keeping of files, which gets lost often

and due to this lack, adjournments are being sought frequently by the

public prosecutors, which ultimately leads in delaying the criminal trials.

Learned amicus curiae further submits that the prosecutors have not been

provided with sufficient stationery which is necessary for conducting

their day to day work. Learned amicus curiae also submits that even the

printers which were made available to the Prosecution Branch were not

found functioning for want of cartridge and maintenance.

2. Learned amicus curiae also submits that the prosecutors have been

provided inadequate sitting area in the office block located to them in

various District Courts and in one cabin, 2 to 3 public prosecutors sit

which makes it quite difficult for them to deal with their cases properly.

Learned amicus curiae further submits that earlier, one official vehicle

was provided to each of the court complex for official use of public

prosecutors as they were required to attend meetings in the Headquarters

of Tis Hazari Courts but recently, since last 3-4 months, this facility has

also been withdrawn.

3. Copy of the report submitted by learned amicus curiae has been

supplied to Ms. Zubeda Begum, Standing Counsel for GNCT of Delhi.

After having gone through the said suggestions, we find that the

suggestions are invaluable to strengthen the working of the public

prosecutors and therefore, we direct the GNCT of Delhi to take into

consideration the said suggestions submitted by Mr. Virmani and give a

response thereto before the next date of hearing by way of an affidavit to

be filed through Secretary (Home), GNCT of Delhi.

4. Ms. Meera Bhatia, Advocate has again drawn our attention with

regard to the non payment of bills by various Administrative Departments

of GNCT of Delhi to the lawyers who are on the panel on the civil side.

In response to this, Ms. Zubeda Begum, Standing Counsel has drawn our

attention to the minutes of the meeting which took place alongwith

Secretary, Principle Secretary/HODs on 7th March 2014 in the office of

the Chief Secretary, wherein one of the decisions was taken to give

direction to all the Government Departments to clear the pending bills of

government counsels. The Chief Secretary however directed the

concerned Departments to immediately clear all the Bills and send a

report to this effect to the Law Department by 12 th March 2014. Based on

the said decision taken in the meeting on 7th March 2014, Ms. Zubeda

Begum, Standing Counsel for GNCT of Delhi submits that no lawyer

who was on the panel of GNCT of Delhi on the civil side would find any

difficulty in getting his/her pending bills settled.

5. Vide orders dated 12th December 2013 we have given directions

that all the Administrative Departments of GNCT of Delhi shall make the

payments with regard to all the pending bills of the government lawyers

on the civil side without committing any default, within a period of two

months from the date of receipt of their bills. It was also directed that so

far as the past pending bills of the counsels were concerned and where the

BTS were not issued by the Law Department, still the payment shall be

made by these departments on the certification of the concerned Standing

Counsel on the bills.

6. Considering the fact that directions, have already been given to the

Chief Secretary, to all the Principal Secretaries/HODs of the respective

departments of GNCT of Delhi that they shall clear all the pending bills

of the government counsels and send their report to the Law Department

by 12th March 2014, we do not see any difficulty popping up in the

settlement of pending bills of government counsels. We further direct that

all the lawyers whose bills are still pending, they can get the necessary

certification done from Ms. Zubeda Begum, Standing Counsel for GNCT

of Delhi. Ms. Meera Bhatia, counsel present in court can also submit her

bills with Ms. Zubeda Begum, Standing Counsel. We however, make it

clear that serious view shall be taken by this court if even after

certification done by the Standing Counsel, GNCT of Delhi, the payments

would not be cleared and we may be constrained to impose heavy costs

on the concerned Principal Secretary/Secretary/HODs for not clearing the

bills of the government counsels. We also make it clear that said costs

will be directly deducted from their respective salaries. The Government

Departments and other Departments of the Government must appreciate

that most of the lawyers who represent the Government as Standing

Counsels/Additional Standing counsels/Panel Lawyers are normally not

engaged by the private parties, especially where the Government is one of

the contesting party and therefore the timely payment of their

professional bills should be on top priority of the Government and its

other departments.

7. Mr. Virmani, learned amicus curiae has also drawn our attention

that even the CBI has not made payments to the public prosecutors of the

Delhi High Court. It has also been submitted that not only the existing

public prosecutors are not getting their payments in time but the

prosecutors and the former prosecutors or the Standing Counsel's bills are

also pending clearance with the CBI for the past considerable period.

8. Let Notice be issued to the Director (Prosecution) through Mr.P.K.

Sharma, Standing Counsel for the CBI. Mr. P.K. Sharma, Standing

Counsel for CBI has been summoned to represent the Director

(Prosecution) and has now appeared in court.

9. Let the Director (Prosecution), CBI, file its affidavit giving details

of pending bills of their former prosecutors/standing counsels and even

the ones who are presently working. To this, we impress upon the

Director (Prosecution), DLA (HQ) and Joint Director (Administration),

CBI, without there being any justified grounds, to clear the pending Bills

of various prosecutors/Standing Counsels well before the next date and if

the payments are not made by the CBI before the next date, then the same

shall then call for certain coercive directions. The public

prosecutors/standing counsels whose professional fee bills are pending

clearance before the CBI, may approach the concerned branches of CBI

immediately in this regard.

10. Mr. P.K. Sharma, Standing Counsel for CBI has apprised this court

that the proposal for enhancement of the fee schedule of public

prosecutors representing the CBI is pending approval with the Law

Ministry for the last about 3-4 months and no decision has yet been taken

by the Law Ministry. Accordingly, Secretary, Law Ministry is directed to

take decision on the said proposal of the CBI before the next date of

hearing.

11. With regard to the filling up of vacancies of Additional Public

Prosecutors/Assistant Public Prosecutors, Ms. Zubeda Begum, Standing

Counsel for GNCT of Delhi has submitted that the proposal for creation

of 63 posts of Assistant Public Prosecutors, 38 posts of Additional Public

Prosecutors and one post of Chief Prosecutor has been made. Standing

Counsel for GNCT of Delhi also submits that after the said proposal is

approved by the Lt. Governor, UPSC shall be approached to fill up the

vacancies. Standing Counsel for GNCT of Delhi also submits that these

63 posts are in addition to the sanctioned posts of 160 posts of Additional

Public Prosecutors who are already in place.

12. Standing Counsel for GNCT of Delhi submits that steps are being

taken for recruitment of 32 Assistant Public Prosecutors which have

fallen vacant due to creation of 25 posts in the month of February 2014

and 7 posts becoming vacant due to resignation, etc. Standing Counsel for

GNCT of Delhi further submits that out of 17 advertised posts, offer of

appointment to 9 Assistant Public Prosecutors has already been issued

who were recently selected by the UPSC and out of 9 selected Assistant

Public Prosecutors, only 8 candidates have come forward to give their

consent for their appointment. Standing Counsel for GNCT of Delhi also

submits that after completion of the formalities, the said 8 candidates are

likely to be appointed within a period of two-three weeks.

13. Mr. Naresh Kaushik, Advocate representing the UPSC submits that

in fact UPSC has selected all the 17 Public Prosecutors against all the

advertised posts and out of 17, only 9 candidates have fulfilled the

requirement. Counsel for the UPSC also submits that out of 17

candidates, in fact UPSC had given two weeks time to six candidates to

produce their original documents by 31st March 2014, the decision will be

taken by the UPSC on these candidates. Counsel for the UPSC also

submits that in the event of they being not selected, then the UPSC will

proceed to select the candidates from the reserved panel in accordance

with the existing rules and regulations. It is further informed that out of

17 candidates, two candidates have approached to Central Administrative

Tribunal (CAT) and as per the directions of Central Administrative

Tribunal, their cases are put in sealed covers. Standing counsel further

submits that the Home department of GNCT of Delhi is also initiating

steps to send requisition to UPSC for recruitment of 32 Assistant Public

Prosecutors and these 32 posts will take care of 25 courts of Metropolitan

Magistrates and 7 posts becoming vacant due to resignation etc. Counsel

also submits that the Home Department has proposed to invite fresh

applications for appointment of Assistant Public Prosecutors on contract

basis strictly in accordance with the Recruitment Rules and the necessary

public notice in this regard shall be issued by the Department after the

completion of election process.

14. One of the pre-dominant cause for delay in disposal of criminal

case is due to shortage of public prosecutors. It is quite shocking to learn

that some of the public prosecutors have been burdened to take care of

the work of two criminal courts. This lackadaisical and apathy of the

Government in not filling up of the vacancies on the posts of Assistant

Public Prosecutors/Additional Public Prosecutors is quite intriguing and

appalling. Recently, the Hon'ble Supreme Court of India has given

directions for completing the trial of all MPs/MLAs facing criminal

prosecution within a period of one year after the charges are framed. But

how can any criminal court function in the absence of a public prosecutor

attached with the court. It is the statutory obligation of the State to ensure

that every criminal court whether be of Metropolitan Magistrate or the

Sessions Court has the assistance of an able and competent public

prosecutor. It is also the duty of the State to ensure that the public

prosecutors so appointed have all the requisite facilities for their efficient

functioning to discharge their day to day duties.

15. This court has already expressed its dissatisfaction and dismay over

the conditions in which the public prosecutors have been working. The

court has also given various directions for timely appointment of public

prosecutors so that the criminal justice system does not suffer due to the

absence of the public prosecutors in any criminal court. It is a matter of

great concern that for the timely appointment of public prosecutors, this

court has to give directions from time to time to GNCT of Delhi. The

only anxiety of the court is that no criminal court should be deprived of

the assistance of public prosecutors. The Government of NCT of Delhi

should get to know in advance as to how many new posts of Judicial

officers are going to be created and filled up in various district courts of

Delhi. It will be taken as a case of gross negligence on the part of the

concerned Ministry/Department, especially the Home Department of the

Delhi if they do not take prompt steps in filling up the vacancies of

Assistant Public Prosecutors/Additional Public Prosecutors to ensure that

all public prosecutors are assigned the duties with such new criminal

courts, be that of Metropolitan Magistrates or the Sessions courts. It is

thus made clear to the GNCT of Delhi that this court will take strict view,

if at any stage it is found that due to any lapse or negligence, timely

appointment of public prosecutors have not taken place. The back-up of

10% of the strength of the public prosecutors in each and every district

shall also ensure that during certain exigencies also, the criminal courts

will not go unrepresented with these public prosecutors.

16. Let compliance report be filed by the Home Department, CBI,

GNCT of Delhi within four weeks.

17. List the matter for further orders on 7th May 2014.

18. This matter shall be treated as part heard.

19. A copy of this order be given dasti to all the counsels representing

their respective departments for compliance.

KAILASH GAMBHIR, J

SUNITA GUPTA, J MARCH 14, 2014 pkb