Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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It must be noted first and foremost that in a landmark judgment with far reaching consequences for Assistant Public Prosecutors, the Aurangabad Bench of Bombay High Court in Maharashtra State Public Prosecutors Association Through its President Sanjay Purushottam Deshmukh versus 1. The State of Maharashtra Through its Secretary, Home Department, Mantralaya, Mumbai. 2. The Director of Prosecution, State of Maharashtra, Church Gate, Mumbai in Writ Petition No. 8117 of 2017 which was reserved on 10th July 2018 and pronounced on 24th August 2018, has quashed resoundingly a government resolution dated May 12, 2015 imposing a condition that the Assistant Public Prosecutor, whose rate of conviction is less than 25% of the cases handled by him, is not entitled to promotion and thus accepted the contention of the petitioners as valid. A Division Bench of Justice SV Gangapurwala and Justice SK Kotwal at Aurangabad held that the said notification was irrational, unreasonable and against the law of the land. So it had to be quashed and naturally so! The Court was hearing a writ petition filed by Maharashtra State Public Prosecutors Association and the respondents were State of Maharashtra and the Director of Prosecution in the State. PR Katneshwarkar was advocate for the petitioner and NT Bhagat, A.G.P. for the State/respondent No. 1.


As it turned out, para 5 brings out that, “Learned Counsel for the petitioner submits that the impugned Government Resolution, specially Clause Nos. 4 and 7, mandating the Assistant Public Prosecutors in Maharashtra State to secure minimum 25% conviction in criminal cases for getting promotion, is unreasonable, contrary to the provisions of Criminal Procedure Code and decision of Supreme Court as well as decision of the High Court.”

To be sure, para 6 then points out that, “Learned Counsel for the petitioner submits that the Public Prosecutor, who represents the State in the criminal trial, is not expected to assure the State that in any case he would secure the conviction. On the other hand, being officer of the Court it is the duty of Public Prosecutor to place before the Court every material collected by the Investigating Officer fairly, irrespective of the fact whether it supports the prosecution case or not.”

Bluntly put: Who can deny or dispute this? How can the Investigating Officer be biased and always disposed towards securing the conviction of the accused under any circumstances? Will this not make an open mockery of justice which always demands neutrality from not just Judges but also the Investigating Officers?

It also cannot be lost on us that it is rightly contended in para 7 that, “Learned Counsel for the petitioner submits that the result of criminal trial depends on quality and quantity of evidence collected by the Investigating Officer and not on the performance of the Public Prosecutor. There is no nexus between the performance of Public Prosecutor and conviction or acquittal.” Absolutely right! To link the performance of Public Prosecutor with conviction or acquittal would be downright absurd!

No wonder, it is then rightly stated in para 8 that, “His last submission is that the impugned Government Resolution being irrational and against the law of the land, deserves to be quashed. He placed reliance on the case of “S.B. Shahane and others Vs. State of Maharashtra and another”, [1995 Supp (3) Supreme Court Cases 37] and “Sushil Hiralal Chokhani Vs. State of Maharashtra”, [(2005) All M.R. (Cri.) 2673].” Can any sane person call such a Government Resolution rational? Speaking for myself, it has been rightly quashed by the Aurangabad Bench of the Bombay High Court!

It would be apposite to now mention what has been contended by the Respondents. To begin with, it is pointed out in para 9 that, “Learned Counsels for the respondents submit that in the Maharashtra the rate of conviction in criminal case is less which compelled the Government to take policy decision and to pass the impugned Government Resolution for improvement in conviction rates, which is neither bias nor malafide, and therefore, the Court cannot interfere with the same. They submit that the conviction rate in Maharashtra State has dropped drastically as compared to the other States, which affects the public at large and sends a wrong signal to the society. The impugned Government Resolution was passed as a policy decision for achieving greater conviction rate and such sincere act of the State cannot be interfered by the Court.”

Continuing in the same vein, it is then brought out in para 10 that, “Learned Counsels for the respondents submit that the respondents conduct seminars and workshops for the Public Prosecutors with sole object to help them to become competent and achieve higher conviction rate.” Para 11 then states that, “Respondents placed reliance on the case of “Delhi Science Forum Vs Union of India”, [1996 (2) SCC 405] wherein it is held that, “The Courts have their limitation as these issues rest with the policy makers of the nation. No directions can be given or is expected from the Courts while implementing such policies, unless there is a violation of infringement of any of the provisions” and “Tamil Nadu Education Department Vs State of Tamil Nadu”, (1980 Vol 3 SCC 97) wherein it is held that, “What was regarded as administratively impractical might, on later thought and activist reconsideration, turn out to be feasible and fair. The Court cannot strike down a Government Order or a Policy merely because there is a variation or contradiction. Life is sometimes a contradiction and even consistency is not always a virtue. What is important to know whether mala fide vitiates or irrational and extraneous factors foul”.”

Needless to say, para 12 then states that, “In fact, after going through the affidavit filed by respondent No. 2, it reveals that the respondent No. 2 has not played any role for passing the impugned Government Resolution and it was the policy decision of Government of Maharashtra. Our attention was drawn to the case of “Brij Mohanlal Vs Union of India and others”, [(2012) 6 SCC 502] wherein while considering when the Court should or should not interfere in the policy decision of the State, the following parameters are laid down:

(I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.

(II) The change in policy must be made fairly and should give the impression that it was done so arbitrarily on any ulterior intention.

(III) The policy can be faulted on grounds of mala fides, unreasonableness, arbitration or unfairness, etc.

(IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.

(V) It is dehors the provisions of the Act or legislations.

(VI) If the delegate has acted beyond its power or delegation.”

After perusal of all the facts before it by the respondent, the Bench notes in para 13 that, “No doubt, after going through the data placed on record by the respondents, it is clear that conviction rate in Maharashtra State is dropping down. Now the question arises whether to enhance the conviction rate the Public Prosecutor, who represent the State in the criminal trial, can be compelled to get conviction at least in 25% cases handled by them.”

Going forward, it is then pointed out in para 14 that, “In the case of “S.B. Shahane and others Vs State of Maharashtra” (supra), while giving directions to the Government to separate Prosecution Department from Police Department, the Apex Court considered 14th Law Commission Report. The relevant paragraphs of that report are reproduced as under:-

“Para 12 – Police Prosecutors and their functioning –

It is obvious that by the very fact of their being members of the Police Force and the nature of the duties they have to discharge in bringing a case in court, it is not possible for them to exhibit that degree of detachment which is necessary in a prosecutor. It is to be remembered that a belief prevails amongst the Police Officers that their promotion in the Department depends upon the number of convictions they are able to obtain as prosecuting officers. Finally, they only control supervision of the work of these prosecuting officers that is exercised by the Department Officials.”

“Para 15. – Suggested remedial measure –

We, therefore, suggest that as the first step towards improvement, the prosecuting agency should be completely separated from the Police Department. In every district a separate prosecution department may be constituted and placed in charge of an official who may be called a ‘Director of Public Prosecutions’. The entire prosecution machinery in the District should be under his control. In order to ensure that he is not regarded as a part of the Police Department he should be independent official directly responsible to the State Government. The departments of the machinery of the Criminal Justice, namely, the Investigation Department and the prosecuting department should thus be completely separated from each other.”

It would be of immense significance to note here that para 15 explicitly states that, “After considering the above observations of the Law Commission, the Apex Court found that the Police Prosecutors who were functioning under the administrative and disciplinary control of the superior officers of the police force, were not able to exhibit needed degree of detachment expected of Prosecutors because their promotions to higher post in Department depended on the number of conviction they were able to obtain from the Court in the prosecutions conducted by them. Therefore, it was felt that the Prosecution Department should be beyond the control of police administration.”

Moving on, it is then observed in para 16 that, “The Apex Court in the case “State of Bihar Vs Ramnaresh Pandey and another” reported in (AIR 1957 SC 389) observed that the Public Prosecutor is an officer of the Court and he is bound to assist the Court with his fairly considered view and Court is entitled to have the benefit of the fair exercise of his function. Following this view the Division Bench of this Court in the case of “Sushil Chokhani” (supra) also held that the duty of Public Prosecutor is not merely to secure the conviction of and imposition of punishment to the accused. It is his primary duty to place before the Court all the evidence collected by investigating agency whether it be in favour or against accused for consideration thereof by the Court. Utmost fair and impartial attitude is expected in that regard from the Public Prosecutor.”

Having said this, we now need to turn our attention to para 17 which while underscoring the need for Public Prosecutors to perform their duty impartially and drawing red lines for the State observes clearly and convincingly that, “Thus, it is clear that Public Prosecutors being an officer of the Court, is not expected to only grab the conviction but is expected to act fairly before the Court and his performance should be only in the form of assistance to the Court for arriving at proper conclusion regarding conviction or acquittal of the accused. Considering such impartial duty to be performed by the Public Prosecutor, the State cannot set a target before the Public Prosecutors to get conviction at least in 25% criminal cases handled by them. What is expected by the State of Maharashtra from the Public Prosecutor is totally against the law as discussed above. In other words, bypassing the impugned Government Resolution, the State Government cannot fix bench-mark for the Public Prosecutors to secure at least 25% conviction in the criminal cases handed by them, to get promotion.”

While underscoring the critical role played by the Investigating Officer, it is then pointed out in para 18 that, “The conviction or acquittal in criminal trial depends on various factors and mainly on the quality of material collected by the Investigating Officer. If the Investigating Officer has collected good quality of material as evidence against the accused and if he has taken necessary precaution while sealing and forwarding the important Muddemal articles to Chemical Analyst, certainly such case may result into conviction, provided that material witnesses stand constant at the stage of evidence. For conviction, the credit goes to Investigating Officer and witnesses. The conviction in criminal trial is not merely related with performance of the Public Prosecutor but as discussed supra depends upon various factors.”

While punching holes in the impugned Government Resolution mandating 25% conviction in criminal trial, para 19 then goes on to add that, “Therefore, issuance of the impugned Government Resolution mandating achievement of 25% conviction in criminal trial is only as a result of above-said misconception. If any negligence has been committed by the Public Prosecutor while conducting the case, that cannot be ascertained only from conviction or acquittal, but it can be ascertained only on examination of the record of that particular case. Therefore, we hold that the condition of particular conviction rate to be achieved by Public Prosecutors, embodied in the impugned Government Resolution is definitely unreasonable.”

Now coming to the concluding paras 20 to 22. Para 20 minces no words in concluding that, “Thus, the impugned Government Resolution is irrational, unreasonable and against the law of the land. Therefore, in view of the parameters laid down by the Apex Court in the case of Brij Mohan Lal” (supra), this Court can definitely quash the impugned Government Resolution. It follows that this Writ Petition deserves to be allowed.” Para 21 states that, “The Writ Petition is allowed. The impugned Government Resolution dated 12.05.2015 is quashed.” Finally, the judgment is concluded in para 22 by observing that, “Rule is made absolute in the above-said terms. Parties to bear their respective costs.”

In the ultimate analysis, it is an exemplary and elegantly written landmark and laudable judgment which certainly deserves to be applauded! It is worth emulating by all the courts in all parts of India! This will ensure that Public Prosecutors can impartially render their job without getting biased with pre-determined notion to ensure conviction of accused at any cost to fulfill the criteria of ensuring the set 25% conviction rate to be eligible for promotions and other benefits which is downright absurd and can never serve the true purpose of justice in the real sense! No doubt, the Aurangabad Bench of Bombay High Court which has dared to deliver this landmark judgment deserves unqualified appreciation for it! It is the biggest warning to all States that they should desist from setting such ridiculous criteria and those who have already done so must immediately make suitable amendments to comply unconditionally with what the Aurangabad Bench of Bombay High Court has laid down so emphatically in this landmark case!

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