OFFICE OF THE DISTRICT GOVERNMENT PLEADER AND PUBLIC PROSECUTOR,
i. The particulars of the Office, Functions and Duties-
Office of the District Government Pleader and Public Prosecutor, Yavatmal.
The Government Pleader is defined in Section 2(7) of Code of Civil Procedure which includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by the Code of Civil Procedure on the Government Pleader and also any Pleader acting under the directions of Government Pleader.
Order 27 Rule 8 B(Maharashtra Law Officers Rules, 1984) defines Government and Government Pleader. In the said order unless otherwise expressly provided Government and Government Pleader mean-
(c) In relation to any suit by, or against the State Government or against the Public Officer in the service of the State, the State Government and the Government Pleader as defined in clause 7 of Section 2, or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of the order 27 of C.P.C..
The Public Prosecutor is defined in section 24 of the Code of Criminal Procedure Sub section
3) Appointment of Public Prosecutor – For a person to be a Public
Prosecutor, it is necessary, that he is either appointed as such under S. 24 or acts under the directions of a Public Prosecutor so appointed. Only a public prosecutor can present an appeal to the High Court against an order of acquittal, if so directed by the State Government, under S. 377. A person cannot be appointed as Public Prosecutor or Additional Public Prosecutor for the District unless his name appears in this panel of names prepared by the District Magistrate under S. 24(4) , Cr.P.C., and unless his name appears in the panel, he has no right to be considered for appointment, An A.P.P. cannot be appointed as Public Prosecutor unless the Sessions Judge recommends him to be included in the panel of names prepared by the District Magistrate as envisaged in S. 24(3) Cr.P.C.
Invitation of applications by the District and Sessions Judge from the advocates willing to be considered for appointment as Public Prosecutor does not violate the provisions of Rule 3 of the Bar Council of India Rules, 1978.
The appointment and engagement of a Public Prosecutor District Government Counsel is not the same as they by a private litigant of his counsel and not being purely private. There is element of continuity of the appointment and public element is attached to the office. The appointment is not at the sweet will of the Government which can be terminated at any time, even without the existence of any cogent reason, during the subsistence of the term.
4) Extension/Renewal of the term. – Section 24 lays down the procedure for appointment of Public Prosecutor, but not for extension/renewal; procedure laid down by the section has also to be followed for renewal/extension of the term.
5) Advocate- General cannot become Public Prosecutor.- The Advocate-General will not become the Public Prosecutor unless appointed under this section. Only in a rare and important case, Advocate- General should be expected to appear. But where he has been specifically empowered by the State Government to appear, the other law officers including the Public Prosecutor have no right to be heard except through him and under his instructions.
Appeal against acquittal presented by Additional Advocate-General , on the ground that the Public Prosecutor ahs not been appointed, is not maintainable notwithstanding the rules under Art. 165 of the Constitution providing that the Advocate- General shall represent the State Government in important cases.
6) Relationship between Public Prosecutor and State – The relationship of District Government Counsel Public Prosecutors, Addl. Public Prosecutor with the Government is that of a counsel and client.
7) Public Prosecutor’s duty to place necessary facts – The Public Prosecutor is not a protagonist of any party though, in theory, he stands for the State in whose name all prosecutions are conducted. He is to aid the Court by examining all witnesses who had knowledge of all the relevant facts unless he has got sufficient cause to believe that the witness has come with a pre-determined intention of giving false evidence or that his examination is unnecessary or superfluous, and thus should place before the Court all the evidence bearing upon the charge. Hence, a person who is appointed to this highly responsible post should always uphold the dignity of this high office with a full sense of responsibility and see that its value is no circumstance devalued.
8) Duty of Prosecutor – The duty of the prosecutor is to assist the Court in reaching a proper conclusion in regard to the case which is brought in for trial. The public prosecutor shall not be partial either to the accused or the prosecution.
9) Effect of void appointment. – Even if the appointment as Assistant District Government Counsel is found to be void in view of sub-sec. (2), the Government would still be bound to compensate for the services rendered.
The District Government Pleader and Assistant Government Pleaders conduct the cases on behalf of Government and Government Officers in District Court and before Civil judge Senior Division Courts.
The Public Prosecutor and Additional Public Prosecutor conduct the cases as per chapter XVIII of Criminal Procedure Code in the Sessions Court. They conduct all the Criminal Appeals, Criminal Revisions, Regular and Anticipatory Bail Applications, Transfer Applications, and all the work in the Court of Sessions. If specially directed they conduct cases before the Court of C.J.M. or J.M.F.C. Also.
The Powers and Duties of its Officers and Employees-
All the Law Officers are governed by the Maharashtra Law Officers(Appointment, Conditions of Service and Remuneration) Rules, 1984.
The Duties of the Government Pleaders and Public Prosecutors are described in Chapter IV Rule 14 from sub rule 1 to 10
(1) Adviser to Government or its officers – It shall be the duty of the Government Pleader or the Public Prosecutor to advise Government or its officers in respect of proceeding, whether civil or criminal. Which he has or may have to conduct on behalf of the state of its officers.
(2) Statutory Duties – The Government Pleader or Public Prosecutor shall discharge such functions as are expressly imposed upon him by the Code of Civil Procedure, the Code of Criminal Procedure or by any other law for the time being in force.
(3) Duties as Government Pleader- Unless otherwise provided in these rules the Government Pleader shall act for the State or its officers in respect of the judicial proceeding file in the court and shall be the recognised agent of the State or its officers within the meaning of Order XXVII, rules 2, 4 and 8 read with Order III, rule 1 of the Code of Civil Procedure; and it shall be the duty of the Government Pleader,-
(a) to appear in the court in any civil suit or appeal or application for review or revision or reference, petition of a civil nature, including petition for exercise of powers under articles 226 and 227 of the Constitution or any other civil proceeding, as the case may be, to which the State or its officers are parties and the institution or defence of which is undertaken by Government in the Law and Judiciary Department and in all interlocutory or other proceedings arising there from and filed in the court ;
(b) to appear on behalf of the State or its officers in the court at the stage of admission of appeals;
(c) to appear in the court on behalf of the State or its officers in which urgent applications like granting, opposing or vacating stay or injunction or both are moved. Whenever stay or injunction is granted or refused and the same is likely to affect the interests of the Government, to apply immediately, for an order of the court to direct the plaintiffs or defendants or appellants or opponents or petitioners or respondents, as the Case may be, to furnish security to the extent necessary;
(d) to appear in any case in the court in which he is directed to appear by any District Judge in support of an order imposing a fine on, or directing the arrest of, a witness under the provisions of the Code of Civil Procedure;
(e) to appear on behalf of the State or its officers in any other case filed in the court when required to do so by the Remembrancer at Legal Affairs or the Joint Secretary 01′ the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be ;
(f) to appear in any civil suit or any other proceeding filed in the court in which the Government or its officers are concerned or interested and in which the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be, requires him to appear whoever the nominal party may be on whose behalf he is called upon to appear.
(4) Duties as Public Prosecutor in the High Court.– Unless otherwise provided in these rules, it shall be the duty of the Public Prosecutor in the High Court,–
(a) to appear on behalf of the State or its officers or any other Public Servant when so directed by the Remembrancer of Legal Affairs, in the High Court-
(i) in every application for the issuance of writs of Habeas Corpus;
(ii) in every case submitted to the High Court under section 366 of the Code of Criminal Procedure for confirmation of a sentence of death;
(iii) in every appeal for enhancement of sentence under section 377 of the Code of Criminal Procedure;
(iv) in every appeal under section 378 of the Code of Criminal Procedure;
(v) in every appeal against a conviction heard by the High Court under section 386 of the Code of Criminal Procedure, if in such appeal the accused person (or when there are several accused persons, any one of them) is represented by a counsel;
(vi) in all cases for transfer and bail applications;
(vii) in every application in criminal case filed in the High Court on behalf of the State for the exercise by the High Court of its powers of reference and revision;
(viii) in every criminal matter in which he may specifically be instructed to appear by a District and Session Judge, a District Magistrate or the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and. Judiciary Department at Nagpur or Aurangabad, as the case may be ;
(ix) in all cases of contempt of court in which he is required to appear;
(x) in any proceeding conducted on behalf of the State before a full larger Bench of the High Court or any Special Bench of the High Court constituted under any law for the time being in force or before Third Judge;
(xi) in any other case in which he is required to do so by the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be;
(b) to present, as soon as possible, an appeal in the High Court against the order of acquittal or against the sentence on the ground of its inadequacy passed in any case, in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (X.XV of 1946) or by any other agency empowered under any Central Act, other than the Code of Criminal Procedure, and in which the Central Government have issued a direction to him to do so, without waiting for further instructions from the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be ;
(c) if, in any criminal case heard before the High Court, a question arises as to any property in which Government in the administrative department may be interested, to inform the District Magistrate of the district in which the case was tried and also the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be, and, when necessary, to apply for an adjournment of the case, in order to enable those officers to furnish him with all information on such question before the case is finally heard by the High Court.
5) Duties as Public Prosecutor in the Sessions Court–
(i) to appear and conduct the prosecution in every trial before the Sessions Court; and for that purpose, he shall at the earliest opportunity examine the records of the proceedings before the committing Magistrate and ensure that any defect, such as the omission to summon a necessary witness is, if possible, remedied before the date fixed for hearing in the Sessions Court;
(ii) to appear for the prosecution at the hearing before the Sessions Court of any appeal against a conviction or application for the revision of sentence or an order (not being one of discharge or acquittal) against which no appeal lies or against any other order when notice of such appeal is served upon him or when he is directed by the Sessions Judge or by the District Magistrate of the Commissioner of Police, as the case may be, so to appear; and in doubtful cases he shall consult the District Magistrate or the Commissioner of Police, as the case may be, whether he should or should not appear in such cases;
(iii) to conduct the prosecution in any trial before a Court of the Metropolitan Magistrate or Judicial Magistrate, as the case may be, when so required by the Sessions Judge or the District Magistrate or, the Commissioner of Police or the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be;
(iv)to prepare and file complaints in the Court of Metropolitan Magistrate or Judicial Magistrate, as the case may be, when directed by any court or by any head of the department of Government or the District Magistrate or the Commissioner of Police, as the case may be ;
(v) not to withdraw any prosecution under section 321 of the Code of Criminal Procedure except upon the suggestion by the court or for other special reasons which it will be for him to substantiate and without first obtaining the sanction Of Government in the Home Department through the District Magistrate or the Commissioner of Police, as the case may be ;
(vi) to perform such other duties as may be assigned to him by Government in the Home Department or the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be;
(vii) to assist the Government officer or Judge or Magistrate in such investigations or inquiries as might result in criminal prosecutions; (viii)to communicate and advice the District Magistrate or the Commissioner of Police in respect of cases committed or to be committed for trials before the Sessions Court;
(ix)to draft charge sheets, complaints, replies, notices, applications and other documents in any of the criminal proceedings filed in the Sessions Court;
(x)where the accused person is a Government servant, to intimate the head of the department to whom the Government servant is subordinate about the final order passed by the concerned court immediately after the said order is passed.
(6) Duties for other Governments.–It shall be the duty of the Government Pleader or Public Prosecutor to appear on behalf of other Governments in the cases, whether civil or criminal, filed in the court to which he is attached, when required to do so by the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be.
(7) Duties at or outside the headquarters.-The duties of the Government Pleader or Public Prosecutor are ordinarily restricted to the courts to which he is appointed, but it is his duty also, whenever his services can be spared without inconvenience to that court and the Remembrancer of Legal Affairs or the Joint Secretary or Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, or the Collector, as the case may be, so requires, to appear himself or to assist any other Government Pleader in any case in any court, tribunal or before any authority at or outside his headquarters.
(8) Duties for the Maharashtra State Legal Aid and Advice Board.-
(a) The Government Pleaders or Public Prosecutors are expected to accept, as far as possible, the briefs whenever entrusted to them by the District or Taluka Legal Aid and Advice, Committees constituted under the Maharashtra State Legal Aid and Advice Scheme, 1979.
(b) The Government Pleaders or Public Prosecutors engaged under clause
(a) shall be entitled to the rates of fees as are prescribed. under the Maharashtra State Legal Aid and Advice Scheme, 1979 and payable by the Legal Aid and Advice Committees under whose instructions the Government Pleaders or Public Prosecutors conduct the cases.
(9) General Duties.–Unless otherwise provided in these rules, it shall be the duty of the Government Pleader or Public Prosecutor,-
(a) to discharge all the duties of the Government Pleader towards the Government or its officers in regard to matters which are likely to lead to litigation in the court;
(b) to prepare and settle pleading or memoranda of appeals or replies or applications or affidavits or counter affidavits or other documents in the proceedings filed in the court or the proceedings filed in the courts or other States or in the Supreme Court, as the case may be :
(c) to ensure that no case is heard by the court without filing the necessary pleadings or I submissions or replies or affidavits or counter affidavits or other documents indicating clearly the contentions of the Government, both on questions or law and facts; .” ,
d) to, see, that no case is conceded before the court, such as granting of bail to any accused or any question of fact not conceded in the affidavit or counter affidavit or any claim against, the State without obtaining previous permission, oral or written, of the competent officer of the department concerned or the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be :
Provided that, all oral permissions obtained shall be confirmed in writing within seven days from the date of obtaining such permission;
(e) to appear in any case, whether civil or criminal in which the court desires him to appear or expresses its opinion that he ought to appear;
(f) to assist the Advocate-General in civil or criminal cases of special importance, whenever such assistance is required by him;
(g) to report to the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be, periodically about the progress of the proceedings in the court to which the State or ‘its officers are parries;
(h) as soon as a matter to which the State or its officers are parties is decided by the court,-
(i) to communicate the nature of the decision to the administrative department and to the Collector, or the District Magistrate or thy Commissioner of Police or the Government officer concerned, as the case may be, with a copy to the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be, giving in important cases a brief statement of the grounds on which the decision is based;
(ii) to apply on the very day of the decision for a certified copy of the judgment and order or decree and take all the necessary steps as provided for in the Rules for the Conduct of the, Legal Affairs of Government, 1984;
(i) (A) when the order or decree has been passed under which any amount is due to the Government or its officers, to take all the necessary steps, with all, possible expedition, to realize the moneys and cost so awarded; and
(B) where the’ order of decree has been passed against’ the State or its officers, to see that the order or decree ,is fully satisfied, within the time fixed for its satisfaction under ,section 82 of the Code of Civil Procedure;
(j) to perform duties• as specified in clause (h) (ii) and clause (i) in the cases in which the Advocate-General appears on behalf of the State or its officers;
(k) to report to the Remembrancer of Lega1. Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be, any of the following matters arising out of any civil or criminal case decided by the court:-
(i) any case in which the court in confirming or imposing the minimum legal penalty expresses or indicates an opinion that a lesser penalty would serve the ends of justice;
(ii) any case in which the court has observed or expressed or indicated that imposition of any tax, cess, levy, penalty, fine or royalty under any of the enactments is unjust and would 110t’serve the ends of justice; and also when any, such observation or indication is made in relation to service matters. aggrarian reforms undertaken by the Government, distribution of surplus lands, acquisition of lands or in any other matter in which action has been taken by the Government in furtherance of the Directive Principles of State Policy;
(iii) any case in which the action of the lower Court, or the conduct of investigation or prosecution or the conduct of the Law Officer or a State employee, has been considered to be gravely irregular or has been severely criticized by the court;
(iv) any case in which the court has declared any law or statutory rule to be ultra vires or in which it has observed that a law or statutory rule has been causing inconvenience or anomaly;
(v) any defect or lacuna in any enactment statutory rule, the removal of which he considers it necessary;
(vi) any pronouncement of the court on a question of law which is likely to affect other cases in the State ;
(vii) any other matter or circumstance Which he himself or the court desires or considers it necessary to be brought to the notice of the Government;
(viii) in any case in which any important question of law is likely to affect the policy- of the Government or the conduct of the Government or its employees has been the subject of comment by the court;.
(l) to assist the Government Pleader or Public Prosecutor in the. High Court in an appeal or other proceeding relating to a case which he has conducted in the subordinate court, when the .Remembrancer of legal Affairs or the Joint-Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be, requires him to do so ;
(m) where a District Government Pleader or Additional or Assistant Government Pleader or Subordinate Government Pleader is so appointed by Government in the Law and Judiciary Department, by general or special order in that behalf, issued under Order XXVII, rule 1 of the Code of Civil Procedure, to sign and verify the plaint or written statement in any suit by or against the State;
n) to appear when instructed to do so by a District or Sessions Judge or District Magistrate or Commissioner of Police, as the case may be, in any proceeding before a civil, criminal or revenue court under section 340 or 345 of the Code of Criminal Procedure; ,
(o) to appear when so directed by the Collector in applications made by the Collector under section 10 of the Guardian and Wards Act, 1890 (VIII of 1890) or section 10 of the Bombay Court’ of Wards Act, 1905 (Bom. I of 1905) ;
(p) where the District Government Pleader so directs the Subordinate Government Pleader, to appear in the execution of any commission for the examination of a witness or in any other civil proceeding;
(q) where the District Magistrate so requires the Subordinate Government Pleader, under section 25 of the Code of Criminal Procedure, to appear before the Court of Judicial Magistrate, First Class, at or near the headquarters of the court for which he is appointed.
(10) Duties of the Special Government Pleader in the Maharashtra Revenue Tribunal- The duties prescribed for Government Pleader in the foregoing rules shall mutatis mutandis apply to the Special Government Pleader for the Maharashtra Revenue Tribunal; and in addition it shall be his duty–
(a) to prepare replies or written statements or revision and review applications or similar documents in the proceedings filed before the Maharashtra Revenue Tribunal;
(b) to advise the Officer on Special Duty, who has been specially appointed by Government in the Revenue and Forests• Department for the concerned division for the purpose of dealing with the appeals filed under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (Mah.XXVII of 196]) and also for the purpose of defending the orders relating to the restoration of lands to tribals under the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (Mah. XI of 1975) and also to draft written statements or .other similar documents in such cases as he is prohibited to appear on behalf of the State or its officers.
15. Charge and distribution of briefs.-(1) (a) The Government Pleader or Public Prosecutor [except in the case of the Government Pleader, High H4518-4 Court (Original Side) and the Additional Government Pleader, High Court, (Appellate Side) at Bombay, or except where there is only, one Law Officer shall be in overall charge of the distribution of briefs amongst his subordinate and Panel Counsel, if any:
Provided that, the distribution shall be subject to any instructions from the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or a Aurangabad, as the case may be.
(b) Subject to clause (a), the Government Pleader or Public Prosecutor shall, as a general rule and as far as possible, himself conduct all important civil or criminal cases which involve important law points or involve important policies of the Government or high stakes. While appearing in such matters he, may take the assistance of his subordinate after seeking the sanction of the Remembrancer or Legal Affairs.
(c) Subject to proviso to clause (a) and clause (b), he shall distribute the work equally amongst his subordinates and Panel Counsel. While assigning work he shall see that only one court is allotted to himself and each of his, subordinates or Panel Counsel , as the case may be, during a day. However under special circumstances or reasons to be recorded writing, he may allot more than one court to himself or any of his subordinates or Panel Counsel.
(d) (i) The Additional or Assistant Government Pleaders or Honorary Assistants to the Government Pleader concerned or the Additional Public Prosecutors shall appear in such cases only as are entrusted to them by the Government Pleader or Public Prosecutor, as the case may be.
(ii) The Honorary Assistants to the Government Pleaders concerned shall assist the Government Pleaders concerned in their day to day Government litigation work.
(2) (a) The Government Pleader, High Court, (Original Side) and the Additional Government Pleader, High Court (Appellate Side) at Bombay and their subordinates shall appear in such cases as are entrusted to them by the Advocate-General.
(b) While appearing in the cases which are of complicated or intricate nature the Government Pleader, High Court (Original Side) or the Additional Government Pleader, High Court (Appellate Side) at Bombay may take the assistance of B Panel Counselor the Assistant Government Pleader, preference being given to the Assistant Government Pleader. However in the cases which are not comparatively heavy or complicated the Government Pleader, High Court (Original Side) or the Additional Government Pleader, High Court (Appellate Side) at Bombay shall invariably appear alone in such matters.
The employees of the Office are on establishment of Principal District and Sessions Judge, Yavatmal.
The Office of District Government Pleader and Public Prosecutor is at Yavatmal, Pusad, Darwha, and Pandharkawada(Kelapur) Sanctioned staff is as at
Yavatmal-Sr.Clerk-1, Clerk-cum-Steno-1, Jr.Clerk-3, Peon-1
Pusad- Sr.Clerk-1, Jr.Clerk-1, Peon-1
Darwha-Sr.Clerk-1, Jr.Clerk-1, Peon-1
Duties of Employees –
To maintained up to date all the Registers, Files, Furniture, Apparatus by the employees as per the information given in particular vi infra.
iii. Procedure followed in the decision making process, including channels of supervision and accountability;
The Law Officers adopt all the procedure prescribed in law and the Rules For The Conduct of Legal Affairs of Government, 1984.
iv. The norms set by it for the discharge of its functions-
The Law Officers discharge their function as per Rules for the Conduct of Legal Affairs of Government, 1984.
v. The Rules, Regulations, Instructions, Manual, and Records held by it for discharging its functions.
Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984.
b. Rules For The Conduct of Legal Affairs of Government, 1984
c. All Circulars and Directions issued by The Government and Law & Judiciary Department
vi. Statements of Categories of Documents held by Office-A) Documents Maintained by and in Custody of Sr.Clerk
a. Cash Book Register b. Contingent Register c. Cheque Register d. Bill Register
e. Allotment Register f. Confidential Register
g. Permanent Advance Register h. Office Order Register
i. Token Register
j. Stationery Register k. Income Tax Register l. Dead Stock Register m. Statement File
n. District Court Correspondence File o. Budget File
p. Income Tax File q. Workshop File r. Circular File
s. Criminal Cases Fee Bill
t. Pay Bill of Class-III and Class-IV
u. Office Expenses File
v. Telephone bill File
w. Franking Machine File
x. Correction File
y. Leave File DGP&AGP, Yavatmal, Pusad, Darwha, Kelapur
z. Criminal Cases Fees Bill File Yavatmal, Pusad, Darwha, Kelapur aa.Adhoc Cases File Yavatmal, Pusad, Darwha, Kelapur bb.Authorisation Slip File
cc.Balancesheet of Pending Cases Yavatmal, Pusad, Darwha, Kelapur (Criminal and Civil)
dd.Xerox Machines, Computers, Printers, Franking Machines, Tables, Chairs, Kapat, Racks Custody and Registers
ff. To get prepared the budget every year and make correspondence for necessary grants well within time.
gg.To maintain up to date all the above registers and files and get audited all the expenses made by office.
hh.To attend the Call of the Courts and give information to the Law Officers.
B) Documents Maintained by and in Custody of Jr.Clerk(Civil)
a. Special Civil Suit Registers
b. Regular Civil Suit Registers
c. Land Acquisition Cases Registers
d. Misc. Judicial Cases Registers
e. Execution Cases Registers
f. Allotment of Civil Suits Registers and Execution.
g. Allotment of Land Acquisition Cases Register h. Balance sheet Register of L.A.C.Cases i. Balance sheet Register of Civil Suit
j. Disposal of Civil Suits, L.A.C. Cases, Execution Cases, M.J.C.Register k. File of Reports of Decisions and Opinions Civil Cases
l. File of Report of Decisions and Opinions Land Acquisition Cases m. File of Correspondence of Civil Suits and Appeals
n. File of Correspondence of Land Acquisition Cases o. File of Correspondence of Execution Cases
p. File of Legal Opinions given to Government and Government Officers.
q. File of Correspondence received from Joint Secretary, L&J, Nagpur regarding resolution of filing of appeals, acquiesced judgments. r. File of Government Resolution.
s. File of application for Withdrawal of compensation/ decreetal amount and correspondence with L.A.O. and Government Officers. t. File of Civil Suits Bill, L.A.C.Bills
u. Special Civil Suits file
v. Regular Civil Suits File
w. Land Acquisition Cases file
x. Misc. Judicial Cases file
y. Execution File
z. Civil Appeal file
aa. File of Monthly Statements, Quarterly Statements, Yearly Statements bb.To collect certified copies of judgments, file application for certified copies, prepared opinions as directed by Law Officers and informed decisions to the Government Officers and State immediately.
cc. To attend the Call of the Courts and give information to the Law Officers.
C) Documents Maintained by and in Custody of Jr.Clerk(Criminal) a. Session Trial Register
b. Special Cases under Anti Corruption Act Register
c. Special Cases under S.C.&S.T.(Prevention of Atrocity) Register d. Special Cases Electricity Register
e. Special Cases N.D.P.S. Register f. Criminal Revision Register
g. Criminal Appeal Register
h. Misc. Criminal Application Register i. C. R. Register
j. Bail Allotment Register
k. Attendance for Certificates Register l. Appeals to High Court Register
m. File of Report decisions in Sessions Trials, Special Cases, Appeals, Revisions
n. File of Resolution of Joint Secretary, Nagpur regarding filing of appeal. o. File of Pendancy of cases under S.C.& S.T. Act.
p. Case Diary and Case Papers in Sessions
q. To attend the Call of the Courts and give information to the Law Officers.
D) Documents Maintained by and in Custody of Jr.Clerk
a. Inward Register
b. Outward Register
c. Session Allotment Register
d. Franking A/c. Register
e. Library Register
f. Library Books
g. C.A. Report & Property File
h. To do the work of Typing as directed by Law Officers.
i. To attend the Call of the Courts and give information to the Law Officers. E) Documents Maintained by and in Custody of Clerk-cum-Steno
a. To take dictation from all Law Officers and prepared drafting and to assist all Senior and Junior Clerks in their duties
b. To operate computers and draft and prepared any pleading as directed and dictated by Law Officers.
c. To make available the Case Laws from Software of Supreme Court Cases d. To maintain shorthand book.
F) Documents Maintained by and in Custody of Peon and Duties a. To clean the premises of Office
b. To reach the correspondence through Daak Book to Government Offices. c. To maintain Daak Book
d. To Keep and get bind the gazettes
e. To bring the cheques from treasury and to bring the cash amount from bank and to handover the same to the Sr.Clerk.
f. And to do all other works as directed by Government Pleaders.
Note: At the Office of Asstt.Govt.Pleader and Addl.Public Prosecutor, Pusad, Darwha, Kelapur the Sr.Clerk has to done the duties mentioned in particular vi A) (e) (f) (h) (j) (l) (m) (n) (r) (s) (v) (w) (x) (z) (gg) (hh)
& duties of Jr.Clerk(Civil) mentioned in B). And Jr.Clerk has to perform the duties mentioned in particular vi C) & D).
vii. the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof.
viii. a statement of the boards, councils, committees and other bodies consisting of two or more persons consulted as its part of for the purpose of its advice, and as to whether meeting of those boards, council committees and other bodies are open to the public or the minutes of such meeting are accessible for public;
x. the monthly remuneration received by each of its officer and employees including the system of compensation as provided in its regulation;
The Law Officers are entitled for their fees as per Chapter V of Maharashtra Law Officers Rule, 1984 and as per Part C and Part D of Chapter XV of The Rules for the Conduct Legal Affairs of Government, 1984 for the cases conducted by them.
The Government has revised the fees and allowances payable to Law Officers in the State of Maharashtra as per under mentioned resolution.
The Government of Maharashtra, Law & Judiciary Department, Mantralaya, Mumbai-32 Resolution No. DGP-2806/MS129(42)-DXIV dt.16th January, 2008 r/w. Corrigendum dt. 12th March, 2008.
xi. the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;
Grant allotment for Year 2012-13
01. Salary Rs. 24,000/-
06. Telephone, Electricity & Water Rs. 4,000/-
13. Office Expenses Rs. 31,000/-
28. Professional & Special Services Rs.21,50,000/-
xii. the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes. –not applicable—
xiii. particulars of recipients concessions, permits or authorization granted by it;
xiv. details in respect of the information available to or held by it, reduced in an electronic form;
Information available in this office is well maintained as described in particular vi supra.
Information is not reduced in an electronic form.
xv. the particulars of facilities available to citizens for obtaining information including the working hours of a library on reading room, if maintained for public use;
Citizens can obtain any information by filing an application to the Information Officer.
The Maharashtra Law Officers Rules, 1984
The Maharashtra Law Officers Rules, 1984 govern the appointment of Law Officers viz., the Government Pleaders and Public Prosecutors as well as Special Public Prosecutors. Rule 2 of the said Rules deals with the definitions and it would be appropriate to reproduce the following clauses:
2(g) “fee” means the fee as prescribed by Government in the Law and Judiciary Department in accordance with these rules or as taxed by the court in the bill of costs to which the Law Officer is entitled;
2(j) “Government Pleader” means an advocate appointed to that post under these rules by Government in the Law and Judiciary Department.
2(l) “Law Officer” means an advocate appointed by Government in the Law and Judiciary Department, under these rules, to conduct cases on behalf of the State or its officers before any court or the Maharashtra Revenue Tribunal and includes an Advocate-General, a Government Pleader and Public Prosecutor.
(x) “Public Prosecutor” means an advocate appointed as a Public Prosecutor by Government in the Law and Judiciary Department under these rules for the High Court and for every district in the State under sub-sections (1) and (3) of section 24 of the Code of Criminal Procedure, for conducting any prosecution, appeal, application or other proceedings on behalf of the State and includes an Additional Public Prosecutor.
Whether the Public Prosecutor or the Government Pleader is a public servant within the meaning of Section 2(c) of the Prevention of Corruption Act?
He is not a person in the service of the State Government, but under Maharashtra Law Officers Rules, he is paid the prescribed fees. As per Rule 30 of the Law Officers Rules except the Advocate General, all Law Officers shall hold the office during the pleasure of the Government. Under Rule 33, there are limitations regarding advising, appearing or acting against the State or its officers, except with the special sanction of the Government. Except as provided under the Rules, the Government Pleader or Public Prosecutor is debarred from holding any brief against the State or its officers or advising, appearing or acting in any case against the State or its officers. In case, the law officer so appointed advises, appears or acts in any case against the State or its officers, before his appointment as such Law Officer, he shall stop doing so as soon as he is so appointed.
There Exist distinction is to be borne in mind between appointment of a Public Prosecutor or Additional Public Prosecutor on one hand, and Assistant Public Prosecutor on the other hand. So far as the Assistant Public Prosecutors are concerned, they are employees of the State.
They hold civil posts. They are answerable for their conduct to higher statutory authorities. Their appointment is governed by the service rules framed by the respective State Governments. Appointment of Public Prosecutor, on the other hand, are governed by the Code of Criminal Procedure and/or the executive instructions framed by the State, governing the terms of their appointment.
Proviso appended to Article 309 of the Constitution of India is not applicable in their case. Their appointment is a tenure appointment. Public Prosecutors, furthermore, retain the character of legal practitioners for all intent and purport.
They, of course, discharge public functions and certain statutory powers are also conferred upon them. Their duties and functions are onerous but the same would not mean that their conditions of appointment are governed by any statute or statutory rule.
The appointments of the Assistant Government Pleader or the Additional Public Prosecutor are made under the Maharashtra Law Officers Rules and though they are contractual in nature, there is undoubtedly no employer-employee relationship between the State Government and such appointees. However, the appointees under the said Rules do perform public duties and they receive their fees as prescribed under the Rules. They are not allowed to appear against the State Government or its officers unless a specific 11 wp-2554-09.sxw permission in writing is obtained. To conduct prosecution on behalf of the State is nothing short of a public duty and that too when so appointed for a fixed tenure and not for a fixed case, under the Maharashtra Law Officers Rule. Section 25A has been added to the Code with effect from 23.06.2006 for the appointment of Director of Prosecution. As per sub-section (5) of the said Section, every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1) or as the case may be, sub-section (8), of Section 24 of the Code, to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of Section 25, shall be subordinate to the Deputy Director of Prosecution and as per sub-section (4) of the said Section, every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution. Under Rule 14 of the Maharashtra Law Officers Rules, the duties of the Government Pleaders and Public Prosecutors have been set out in detail. It is also well known that in the State of Maharashtra there is a separate cadre of Assistant Public Prosecutors and they are State Government employees.
Undoubtedly, the Public Prosecutor or Additional Public Prosecutor is not an employee of the State Government, but, in our opinion, he is certainly a public servant within the meaning of Section 2(c) of the Prevention of Corruption Act, 1988.
Section 2(c) of the Prevention of Corruption Act has defined the term “Public servant” and it means any of the persons enumerated therein. It would be appropriate to re-produce Section 2(c) of the Prevention of Corruption Act to the extent relevant for the present case :
2 (c) `public servant’ means –
(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of a corporation established by or 6 wp-2554-09.sxw under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a government company as defined in Section 617 of th Companies Act, 1956 (1 of 1956).
The term “public duty’ has also been defined under Section 2(b) of the Prevention of Corruption Act and it means a duty in the discharge of which the State, the public or a community at large has an interest.
This was emphasized in State of U.P. and Ors. v. U.P. State Law Officers Association and Ors.(Appeal (civil) 662-68 of 1991) . In para-18 of the judgment the Apex Court observed that the mode of appointment of lawyers for the public bodies could be either by an open invitation to the lawyers to compete for the post or by inviting the best persons available although they may not have applied for the post. Thereafter the Court observed: Whatever the method adopted, it must be shown that the search for the meritorious was undertaken and the appointments were made only on the basis of the merit and not for any other consideration.
The judgment of the Apex Court in the case of Harpal Singh Chauhan and Ors. v. State of U.P. is quite instructive for our purpose. In that matter, the appellants were working as Public Prosecutors in the District of Moradabad, U.P. The District Judge had recommended their extension but the District Magistrate, after receiving recommendation of the District Judge, did not recommend those names saying that on an inquiry at his level, their reputation, professional work, behaviour and conduct was not found in accordance with public interest. The State Government rejected the extension. The State Government had relied upon the provisions of U.P. Government Legal Remembrancer’s Manual which contains the detailed provisions with regard to initial appointment, extension and renewal of Law Officers. The Apex Court held that the procedure prescribed in the Manual to the extent it is not in conflict with the provisions of Section 24 shall be deemed to be supplementing the statutory provisions. The Court further held that the procedure prescribed under Section 24 was not followed by the District Magistrate and the records could not show that any panel as required by Section 24(4) was prepared by the District Magistrate in consultation with the District and Sessions Judge. In paras 18 and 19, the Court held that there was patent infraction of the statutory provisions and that there was no effective or real consultation between the Sessions Judge and the District Magistrate. The SLP was, therefore, allowed and the District Magistrate was directed to perform his duty in accordance with Section 24 of the Cr.P.C. What the Apex Court has observed in para-11 is instructive for our purpose which reads as follows:-
“11. The Code prescribes the procedure for appointment of Public Prosecutor and Additional Public Prosecutor, for the High Court and the District Courts by the State Government. The framers of the Code, were conscious of the fact, that the Public Prosecutor and the Additional Public Prosecutor have an important role, while prosecuting, on behalf of the State, accused person, who are alleged to have committed one or the other offence. Because of that, provisions have been made for their selection in the Code. It is for the Sessions Judge to assess the merit and professional conduct of the persons recommended for such appointment and the District Magistrate to express his opinion on the suitability of persons so recommended, from the administrative point of view.
Sub-section (5) of Section 24 provides that no person shall be appointed by the State Government as the Public Prosecutor or as an Additional Public Prosecutor “unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4)”. The aforesaid section requires an effective and real consultation between the Sessions Judge and the District Magistrate, about the merit and suitability of person to be appointed as Public Prosecutor or as an Additional Public Prosecutor. That is why it requires, a panel of names of persons, to be prepared by the District Magistrate in consultation with the Sessions Judge.
The same is the position so far the Manual is concerned. It enumerates in detail, how for purpose of initial appointment, extension or renewal, the District Judge who is also the Sessions Judge, is to give his estimate of the quality of the work of the Counsel from the judicial standpoint and the District Officer i.e. the District Magistrate is to report about the suitability of such person, from administrative point of view. “
11. Then we come to the judgment in the case of State of U.P. and Anr. v. Johri Mal . In this matter, the respondent who was working as a District Government Counsel (Criminal) at Merat in U.P. was declined renewal. In a writ petition filed before the Allahabad High Court, he contended that the denial was contrary to the recommendation of the District Judge and District Magistrate. The Government of U.P. failed to file a reply and the Allahabad High Court allowed the petition. In the SLP, it was pointed out to the Apex Court that the facts were to the contrary and that such a recommendation had not been made by the District Judge. The Apex Court allowed the appeal in view of these facts but what it observed on various legal aspects is material for our purpose. It is relevant to note that by the time this matter came to be decided, the State of U.P. had amended Section 24 of Cr.P.C. and deleted the requirement to consult the High Court in appointment of Public Prosecutors for the High Court as contained in sub-section (1). The State of U.P. deleted sub-sections (4), (5) and (6) altogether with effect from 16.2.1991. Thus, the renewal of termof District Government Counsel was to be governed by the Legal Remembrancer’s Manual. Yet the Court observed emphasizing the consultation with the District Judge in paras 85 and 86 as follows:-
“85. The age-old tradition on the part of the State in appointing the District Government Counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles. Whereas the District Judge is supposed to know the merit, competence and capability of the lawyers concerned for discharging their duties, the District Magistrate is supposed to know their conduct outside the court vis-a-vis the victims of offences, public officers, witnesses, etc. The District Magistrate is also supposed to know about the conduct of the Government Counsel as also their integrity.