K. Raviraja Pandian, J. - (1.) THIS Writ petition is filed seeking for the relief of issuance of writ of Quo warranto directing the third respondent to show cause by what authority he claims to have, use, enjoy and perform the rights, duties and privileges of the Office of the Additional Public Prosecutor and Public Prosecutor (In Charge) in the High Court of Madras and consequently declare that the appointment of the third respondent as an Additional Public Prosecutor and Public Prosecutor (in charge) of the High Court of Madras as ab initio void.
(2.) THE petitioner - a practicing advocate of the Madras High Court and Tamil Nadu State Joint Secretary Indian Association of People's Lawyers, has filed the writ petition supported by an affidavit. THE material averments in the affidavit are that the petitioner came to know that the third respondent, who is serving as Additional Public Prosecutor of Madras High Court, was appointed as Public Prosecutor (Incharge), that he came to know that the third respondent before his appointment as Additional Public Prosecutor has also served as Government Advocate (Criminal Side) in the Madras High Court from 1996 to 1998 that under Right to Information Act, he obtained certain Government orders and other related documents pertaining to the appointment etc., of the third respondent, that from which he learnt that the third respondent was appointed as Additional Public Prosecutor of Madras High Court in the year 2006 vide G.O.Ms. No,576 dated 23.6.2006 that the petitioner came to know that the third respondent during his tenure as Government Advocate was terminated from his service on corruption charges vide G.O.Ms.No,927 dated 12.6.1998 that he further learnt that the Government Advocates were appointed only for a tenure of two years and subsequently extended for two more years if need be on lawful consideration that despite the fact that only less than four weeks was remaining for completion of tenure of the third respondent, Government chose to terminate him from service that reveals the gravity of the corruption charges levelled against the third respondent that in the Bio-data placed by the third respondent for his appointment to the post of Additional Public Prosecutor, it is stated that the third respondent has served two years as Government Advocate from the year 1996 to 1998 that the said statement is not true as he was terminated from service before the completion of two years from his appointment that it is clearly evident to conceal the fact of termination, the third respondent has stated that he has completed two years of service as Government Advocate (Criminal Side) that the third respondent's termination from service on corruption charges was totally concealed during his appointment as Additional Public Prosecutor that Section 24 of Criminal Procedure Code mandates the consultation of the High Court before the appointment of Additional Public Prosecutor that the petitioner hoped that the documents relating to the termination and the enquiry proceedings conducted before such termination were not placed before this Court and that fact was completely concealed that a great sanctity is attached to the post of Public Prosecutor that the Public Prosecutor is not only defending the State, but also expected to be fair to the Court as well as the accused that the Public Prosecutor is expected to maintain the decorum, uphold the majesty of justice and help the Court in dispensing justice in Criminal Justice Administration that if a person, who heads such system, is himself a person removed on the charge of corruption, the very criminal law administration would be at jeopardy that the procedure of consultation of the High Court for appointment of the Public Prosecutor is not even required for the post of an Advocate General, that the word consultation is real consultation, in the sense, that all the materials in possession of one who consults must be unreservedly placed before the consultee, and withholding of material information like termination of respondent No,3 on corruption charges will vitiate the very appointment of the post of Additional Public Prosecutor. On the above basis the petitioner filed the writ petition for issuance of quo warranto. On an office note dated 17.8.2009, My Lord the Honourable Chief Justice has ordered the Registry to post this case before this Bench and as such the matter was listed before this Court on 21.8.1999. On that day, at the request of the counsel appearing for the petitioner to gather more materials, the matter was adjourned to 25.8.2009. The counsel appearing for the petitioner argued the case on 25.8.2009 reiterating what is stated in the affidavit by arguing that a person, who has been terminated from the service of Government Advocate (Criminal Side) on proved misconduct should not have been appointed as Additional Public Prosecutor by respondents No.1 and 2. In his resume (bio-data), the third respondent has stated that he has served as Government Advocate (Criminal Side) in Public Prosecutor's Office, High Court, Chennai for two years (1996-1998), which is incorrect. The third respondent has not completed two years of service, but was terminated few weeks prior to the completion of two years. Section 24 of the Criminal Procedure Code requires that the State Government has to appoint Additional Public Prosecutor on consultation with the High Court. While respondent No.1 is seeking for the opinion of the Court, he had failed to disclose the material fact of termination of the third respondent on proved corruption charges. In order to bring home his contention, he relied on the decisions of Ponnusamy Vs. State Of Tamil Nadu Reported In 1995 Writ Law Reporter 503, R.Radhakrishnan Vs. Director General Of Police Reported In (2008) 1 Scc 660 And Anna Mathew Vs. N.Kannadasan Reported In 2009-1- Law Weekly 87.
(3.) ON behalf of the respondents, it is submitted that a quo warranto can be maintained only if the person appointed to the Office has no valid qualification to hold the post or if such appointment is made against the relevant statutory provision. In the case of appointment of the third respondent, none of the conditions is contravened. Hence, a quo warranto cannot be maintained. The contention of the petitioner that the third respondent has been terminated from his post as Government Advocate (Criminal Side) on the proved misconduct of corruption is absolutely baseless, but it is a figment of the imagination of the petitioner. The Government Order G.O.Ms.No,927 dated 12.6.1998 with which reliance has been made to contend as above by the petitioner nowhere suggests that the third respondent was terminated from the panel of advocates on the proved charge of corruption. The third respondent was terminated from serving as Government Advocate earlier on the recommendation of the then Public Prosecutor for certain alleged lapses in defending a transfer petition. That cannot be regarded as disqualification for appointing him as Additional Public Prosecutor after lapse of eight years. The State is competent to appoint a lawyer of its choice to the post of Pubic Prosecutor in consultation with the High Court as required under Section 24(1) of the Criminal Procedure Code. The third respondent is an Advocate practicing in the criminal side for more than fifteen years meets the requirement of sub section (7) of section 24 and was appointed as Additional Public Prosecutor in consultation of the High Court, Madras. The writ petition may be dismissed. The file relating to the Order dated 12.6.1998 is placed for our perusal. On a reading of the file, it could be seen that one Satyanathan, first accused in Crime No,40 of 1998 on the file of Sankar Nagar police station obtained an order of anticipatory bail from this Court on 13.1.1998 in Crl.O.P.No,404 of 1998 on conditions that he should appear before the respondent police daily at 10.00 a.m, and 5.00 p.m, until further orders, and also produce the car allegedly involved in the case for investigation purpose as and when required. Subsequently the same Satyanathan filed Crl.O.P.No,2157 of 1998 praying for transfer of investigation of crime No,40 of 1998 from Sankar Nagar Police Station to some other station. On 27.2.1998, this Court passed an order to call the matter on 3.3.1998 along with Crl.M.P.No.1544 of 1998 and in the meanwhile directed the respondent police not to insist the petitioner's presence or harass him. The application in Crl.M.P.No.1544 of 1998 was filed for cancellation of the bail granted earlier. The conditions imposed in the anticipatory bail petition directing Satyanathan to appear before the respondent police and produce the car allegedly involved in the case for investigation purpose as and when necessary was not brought to the notice of the Court while passing the order on 27.2.1998 and that at the time of hearing of Crl.M.P.No,2157 of 1998 filed for transfer of investigation, the third respondent did not present the case properly and did not make any attempt to refute the allegations made against the police officer, were the allegations made against the third respondent. It could be seen from the order dated 27.02.1998 that filing a petition for cancellation of bail in Crl.M.P.No.1544 of 1998 has been brought to the notice of the Court, but for which there is no necessity for the Court to direct the Crl.M.P.No,2157 of 1998 to be posted along with Crl.M.P.No.1544 of 1998. However, on the basis of the above allegation, the then Public Prosecutor sent a letter recommending for termination of service of the third respondent as Government Advocate as his continuance in the office of the Public Prosecutor would be against public interest. Pursuant to the same, G.O.Ms.No,927 dated 12.6.1998 was issued terminating the third respondent from the panel of Advocates. The termination order reads as follows: "ORDER:- As per Rule 2 in para VI under the heading "System of Panel of Advocates" in High Court Standing Order Part II, the Government of Tamil Nadu hereby direct that the services of Thiru.P.Kumaresan, Government Advocate (Criminal Side) attached to High Court, Chennai be terminated from the panel of Advocates by giving one month retainer fee from the date of issue of this order. 2. The Public Prosecutor, High Court, Chennai is requested to arrange to serve the order to the Law Officer. He is also requested to arrange to draw and disburse the retainer fee as mentioned above to the above Law Officer, High Court, Chennai." There is absolutely no material or even a whisper in the above order that the third respondent's service as Government Advocate was terminated on proved corruption charges. There is no explanation from the petitioner as to how he came to the conclusion that the third respondent was terminated on proved corruption charges. For the allegation of corruption charges, except the bald averment in the affidavit and the stout argument before the Court, there is no material forthcoming from the petitioner. This is nothing but wild, rather reckless allegation levelled against the third respondent for the reasons best known to the petitioner.;